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A HISTORY 

OF 

THE CEIMINAL LAW OF ENGLAND, 



VOL. L 



A HISTORY 



OF 



THE CEIMINAL LAW 
OF ENGLAND. 



BY 



SIR JAMES FITZJAMES STEPHEN, K.C.S.I., D.C.L., 

A JUDGE OF THE HIGH COITRT OF JUSTICE, QUEEN'S BENCH DIVISION. 



IN THREE YOLUMES. 
VOL. I. 




3f onbon : 
MACMILLAN AND CO. 

1883. 



The TUflht of Trantlotion and Feproduelion d rrttrved. 



LONDOK : 

E Clay, Sons, and Taylor, 

BREAD STREET HILL. 



PREFACE. 

This work, which attempts to relate the history of the 
Criminal Law of England, has a history of its own. 

In 1863 I published what in one sense may be called the 
first edition of this work under the title of A General View of 
the Criminal Law. In 1869 I became Legal Member of the 
Council of the Viceroy in India, and held that office for about 
two years and a half, during which time my attention was 
strongly directed, from the legislative point of view, to the 
subject of Criminal Law, and particularly to its codification. 
Amongst other things, I drew and carried through the 
Legislative Council the Code of Criminal Procedure, Act X. 
of 1872, which, with some slight alterations and variations 
has just been reenacted and extended to the High Courts 
by Act X. of 1882. 

In 1873 or 1874 I was informed that a second edition of 
my General View was wanted. I began to prepare one, but 
I found myself hampered at every page by the absence of 
any authoritative statement of the law to which I might 
refer. It then occurred to me that as there was no such 
statement in existence I might write something which at 
all events would express my own views as to what the law 
was, to which I might refer in discussing its provisions 
historically and critically. Acting on this I wrote my Digest 
of the Criminal Law which was published in 1877, and of 
which a third edition is just coming out. The Digest does 



vi PKEFACE. 

not deal with the subject of Procedure. In order at once 
to complete it and to enable the readers of the present work 
to see the law of Criminal Procedure as well as that of crimes 
and punishments stated systematically, I have (with the help 
of my eldest son) written as a companion to the earlier Digest 
a Digest of the Lavj of Criminal Procedure, which is published 
contemporaneously with the present work. 

When the Digest of the Criminal Law was written it 
occurred to me that with a little alteration it would make 
a Draft Penal Code. I communicated this view to Lord 
Cairns (then Lord Chancellor) and to the late Lord Justice 
Holker (then Attorney-General), and under their authority 
I drew the Draft Criminal Code of 1878, which was introduced 
into Parliament by Sir John Holker in the session of that 
year. Thanks to a great extent to the admirable skill with 
which Sir John Holker brought forward a measure which he 
appreciated with extraordinary quickness, for I think his 
attention had never before been directed to the subject of 
codification, the bill was favourably received, but Parlia- 
ment had not time to attend to it. A commission, however, 
was issued to Lord Blackburn, Mr. Justice Barry, Lord- 
Justice Lush, and myself, to inquire into and consider and 
report upon the Draft Code. It was accordingly considered 
by us for about five months, namely from November, 1878, 
to May, 1879.^ We sat daily during nearly the whole of that 
time, and discussed every line and nearly every word of every 
section. The Draft Code which was appended to the Report 
speaks for itself. It differs slightly from the Draft Code 
of 1878. The particulars of the differences are stated in the 
Report prefixed to the Draft Code of 1879. I did not discover, 
in the course of the searching discussions of every detail of 
the subject which took place, any serious error or omission 

1 The Report was signed June 12, 1879. 



PREFACE. Vli 

in the Digest upon which both measures were founded. Our 
report was presented too late for the Code to be passed in 
1879. In 1880 there was a change of ministry, but in 1882 
the part of the Code which related to Procedure was 
announced in the Queen's Speech as a Government measure. 
It had, however, to be postponed, like many other things, 
to matters of a more pressing nature. For reasons stated 
at length in the present work I should deeply regret the 
division of the Code into separate parts. Such a course would 
in my opinion produce confusion and deprive the measure 
of much of its value. If it is said that the Code taken 
as a whole is too extensive a measure to be disposed of in 
a single session, it may be replied that it is not longer than 
other single acts — for instance, the Merchant Shipping Act of 
1854 ; and it may be added that by far the greater part of 
the Act is mere reenactment, and would in all probability 
give rise to no discussion. At all events, if the Bill is 
divided into two parts, it would be desirable to suspend the 
operation of the one first passed till the other could be 
enacted. They are so interwoven that it would be incon- 
venient to bring one into operation alone. To give a single 
instance. How can you retain the distinction between felony 
and misdemeanour as a part of the substantive law, and yet 
remove it from the law of procedure ? How, if it is removed 
from the law of procedure, retain it as part of the substantive 
law ? There is no hurry about the matter. The law as it 
stands is perfectly well understood and in substance requires 
little alteration. The use of codification would be to give it 
literary form, and so to render it generally accessible to all 
whom it concerns. Surely it would be unwise to perform the 
operation in such a way as to deprive the result of its 
principal value. 

As soon as the sittings of the Criminal Code Commissions 



viii PREFACE. 

were over I returned to the work which the preparation and 
revision of the Draft Codes of 1878 and 1879 had forced 
me to lay aside. 

On turning back to the book published in 1863 I found 
that though the experience collected in the manner already 
stated had confirmed large parts of what I had written, the 
book was in many places crude and imperfect, and that in 
some respects it no longer represented my views. It seemed, 
accordingly, that if the work was to be republished it must 
be rewritten, and the present work is the result. I am con- 
scious of many defects in it for which my best apology is 
that it has been written in the intervals of leisure left by my 
judicial duties. It is longer and more elaborate than 1 
originally meant it to be, but, until I set myself to study the 
subject as a whole, and from the historical point of view, I had 
no idea of the way in which it connected itself with all 
the most interesting parts of our history, and it has been 
matter of unceasing interest to see how the crude, imper- 
fect definitions of the thirteenth century were gradually 
moulded into the most complete and comprehensive body of 
criminal law in the world, and how the clumsy institutions 
of the thirteenth century gradually grew into a body of 
courts and a course of procedure which, in an age when every- 
thing is changed, have remained substantially unaltered, and 
are not alleged to require alteration in their main features. 
Much has been said and written of late years on the historical 
method of treating legal and political matters, and it has no 
doubt thrown great light on the laws and institutions of 
remote antiquity. Less has been done in investigating 
comparatively modem laws and institutions. The history of 
one part of our institutions has, under the name of constitu- 
tional history or law, been investigated with admirable skill 
and profound learning. Comparatively little has been done 



PREFACE. IX 

towards writing the history of other branches of our law which 
are perhaps more intimately connected with the current busi- 
ness of life. Of these the criminal law is one of the most 
important and characteristic. No department of law can claim 
greater moral importance than that which, with the detail and 
precision necessary for legal purposes, stigmatises certain kinds 
of conduct as crimes, the commission of which involves, if 
detected, indelible infamy and the loss, as the case may be, 
of life, property, or personal liberty. A gradual change in 
the moral sentiments of the community as to crime in 
general and as to each separate crime in particular, displays 
itself in the history of legislation on the subject, and 
particularly in the history of legal punishments. The 
political and constitutional interest of the subject is not 
inferior to its moral interest. Every great constitutional 
question has had its effect both on criminal procedure and 
on the definition of crimes. I may instance the history 
of impeachments, the history of tbe criminal jurisdiction of 
the Privy Council, the history of the gradual development of 
the modem system of trial, the history of the law relating 
to treason, and that of the law relating to libel. Subjects 
of even more vital interest than politics have their bearing 
upon the criminal law. Any history of it which omitted 
the subject of religious offences would be incomplete, but 
that history involves a sketch of the process which has, 
in the course of about five centuries, changed a legislative 
system, based upon practically unanimous belief in the doc- 
trines of the mediaeval church, into a system which, accord- 
ing to some, is based upon the principle that for legislative 
purposes many religions are to be regarded as about equally 
true (which is probably what is meant by the principle of 
religious equality), and according to others on the principle 
that all religions are untrue. 



X PREFACE. 

The subject of criminal responsibility and the relation 
of madness to crime cannot be discussed without saying 
something on subjects forming the debateable land between 
ethics, physiology, and mental philosophy. 

Again, the different views of social and political economy 
which have prevailed at different times have left traces, 
amongst others, on the laws which punish offences against 
trade, and on the laws against vagrancy and on the game 
laws. 

Even the history of crimes which are crimes and nothing 
else, such as homicide in its two forms, and theft, is full 
of interest, partly because it illustrates the unexpressed 
views of many different ages upon violence and dishonesty, 
and partly because it is perhaps the most striking illus- 
tration to be found in any part of the law of the process 
by which the crude and meagre generalities of the early 
law were gradually elaborated into a system erring on the 
side of over luxuriance and refinement, but containing mate- 
rials of the highest value for systematic legislation. 

Lastly, the Criminal Law, like every other important branch 
of the law, connects itself with other systems, and that in 
several ways. First, the question of its local extent has 
much to do with questions connected with International 
Law. Secondly, it has been the parent of other systems, 
one of which at least (the Criminal Law of India) is on 
its own account a topic of great interest, whilst it becomes 
doubly interesting when it is regarded, as it ought to be, 
as a rationalised version of the system from which it was 
taken. Thirdly, it is difficult to criticise the system properly 
or to enter into its spirit except by comparing it with 
what may be described as the great rival system, — that 
which is contained in the French and German Penal Codes, 
both of which may be regarded to a certain extent as 



PREFACE. XI 

rationalised versions and developments (though in each case 
at several removes) of the Criminal Law of Eome. 

I have tried to deal with these matters in such a manner 
as to write a hitherto unwritten chapter of the history of 
England, and at the same time to explain one of the most 
important branches of the existing law, and to show on what 
foundations rests the Code in which it is proposed to 
embody it. 

J. F. Stephen. 

Anaverna, 

Eavensdale, 

Co. Louth, 
Oct. 19, 1882. 



CONTENTS, 



CHAPTER I. 

PAGE 
STATEMENT OF THE SUBJECT OF THE WORK 1 



CHAPTER II. 

ROMAN CRIMINAL LAW 9 

CHAPTER III. 

EARLY ENGLISH CRIMINAL LAW 51 



CHAPTER IV. 

THE ORDINARY CRIMINAL COURTS — QUEEN's BENCH DIVISION OF THK 
HIGH COURT, THE COURTS OF ASSIZE, THK COURTS OF QUARTER 
SESSIONS, COURTS OF SUMMARY JURISDICTION, FRANCHISE COURTS, 
WELSH COURTS 75 



CHAPTER V. 

THE CRIMINAL JURISDICTION OF PARLIAMENT AND THE COURT OF THE 

LOBD HIGH STEWARD 145 



XIV CONTENTS. 



CHAPTER VI. 

PAGE 
THE CKIMINAL JURISDICTION OF THE PRIVY COUNCIL 166 



CHAPTER VII. 

HISTORY OF THE LAW OF CRIMINAL PROCEDURE. — PROCEDURE DOWN 

TO COMMITTAL FOR TRIAL OR BAIL 184 



CHAPTER VIII. 

HISTORY OF THE LAW OF CRIMINAL PROCEDURE CONTINUED. — FORMS 

OF ACCUSATION AND TRIAL — APPEALS — ORDEALS — TRIAL BY JURY 244 



CHAPTER IX. 

HISTORY OF THE LAW OF CRIMINAL PROCEDURE CONTINUED. — LEGAL 
INCIDENTS OF A CRIMINAL TRIAL — INDICTMENT AND INFORMATION 
— ARRAIGNMENT, TRIAL, AND VERDICT 273 



CHAPTER X. 

HISTORY OF THE LAW OF CRIMINAL PROCEDURE CONTINUED. — PROCEED- 
INGS BY WAY OF APPEAL 308 



CHAPTER XI. 

HISTORY OF CRIMINAL TRIALS IN ENGLAND FROM 1554 — 1760 .... 319 



CHAPTER XII. 

DESCRIPTION OF MODERN CRIMINAL TRIALS 428 



CONTENTS. XV 



CHAPTER XIIL 

PAGE 

HISTORY OF LEGAL PUNISHMENTS c 457 



CHAPTER XIV. 

MANAGEMENT OF PROSECUTIONS 493 



CHAPTER XV. 

GENERAL AND COMPARATIVE VIEW OF ENGLISH AND FRENCH CRIMINAL 

PROCEDURE 504 



*** For List of Cases named, Statutes cited and General Index, 
see end of Volume III. 



ERRATA AND CORRIGENDA. 



Vol. I. 



P. 56, last line, omit "[?culpam]" and add the following note to the word 

"colpum: " — "Colpus Gallis coup Italis colpo diminutivum ex 

colaphus.'^ — Ducange, sub voce. 
P, 70, note 2, for " Hen. 8," read, "Hen. 1." 
P. 71, line 20 from top, for " theoir," read, '' theow." 
P. 98, last line, for "goal," read, "gaol." 
P. 116, last line of note l,for " c. 79," read " c. 76." 
P. 126, The passage quoted fro7n Bracton is in Vol. II., p. 538. 
P. 127, note 2, for " Sir H. Twiss," read, "Sir T. Twiss." 
P. 241, add to note 4 the following : — " The &c., to which this note is made is 

a misprint in Sir T. Twiss's edition for 'vie.,' the abbreviation of 

vicecomites, which makes the passage clear." 

Vol. II. 

P. 17, note 1, line 2, for "Horace," read " Travers." 
P. 187, line ^ from the bottom, for "cnr," read " eas." 

Vol. III. 

P. 15, line %from bottom, dele "who." 

P. 21, line 17 from top, dele "two." 

P. 29, line next below the table, for " Horace," read " Travers." 

P. 152, note 1, for "Shaw," read "Show." 

P. 179, line \1,for "actions," read "sections," 

P. 321, line Qfrom top, for " they," read " he." 



CEIMINAL LAW. 

CHAPTER T. 

STATEMENT OF THE SUBJECT OF THE WORK. 

A COMPLETE account of any branch of the law ought to Chap. I. 
consist of three parts, corresponding to its past, present, and 
future condition respectively. These three parts are — 

(1) Its history. 

(2) A statement of it as an existing system. 

(3) A critical discussion of its component parts with a view 
to its improvement. 

My Digest of the Criminal Law and the Digest of the Laio 
of Criminal Procedure now published as a companion volume 
to it are attempts to state the most important parts of the 
criminal law as it is systematically. The present work is 
intended to relate its history, and to criticise its component 
parts with a view to their improvement. The criticism is 
for the most part interwoven with the history. 

Before undertaking either of these tasks I must endeavour 
to define what I mean by the Criminal Law. The most 
obvious meaning of the expression is that part of the law 
which relates to crimes and their punishment — a crime 
being defined as an act or omission in respect of which 
legal punishment may be inflicted on the person who is in 
default cither by acting or omitting to act. 

VOL. I. B 



2 DEFINITION OF CRIMINAL LAW. 

Chap. I. This definition is too wide for practical purposes. If it 
were applied in its full latitude it would embrace all law 
whatever, for one specific peculiarity by which law is dis- 
tinguished from morality is, that law is coercive, and all 
coercion at some stage involves the possibility of punish- 
ment. This might be shown in relation to matters 
altogether unconnected with criminal law, as the expression 
is commonly understood, such as legal maxims and the rules 
of inheritance. A judge who wilfully refused to act upon 
recognised legal maxims would be liable to impeachment. 
The proprietary rights which are protected by laws punishing 
offences against property are determined by the application 
of those laws. If there were no such crimes as theft, forcible 
entry, malicious mischief, and the like, and if there were no 
means of forcing people to respect proprietary rights, there 
would be no such thing as property by lav/. 

This is no doubt a remote and abstract speculation. The 
principle on which it depends may be displayed by more 
obvious and important illustrations. It would be a violation 
of the common use of language to describe the law relating 
to the celebration of marriage, or the Merchant Shipping 
Act, or the law relating to the registration of births, as 
branches of the criminal law. Yet the statutes on each of 
these subjects contain a greater or less number of sanctioning 
clauses which it is difficult to understand without reference 
to the whole of the acts to which they belong. Thus, for 
instance, it is felony to celebrate marriage otherwise than 
according to the provisions of certain ^Acts of Parliament 
passed in 1823 and 1837, and these provisions form a 
connected system which cannot be understood without 
reference to the common law on the subject. These illus- 
trations (which might be indefinitely multiplied) show that 
the definition of criminal law suggested above must either be 
considerably narrowed or must conflict with the common use 
of language by including many parts of the law to which 
the expression is not usually applied. 

For all practical purposes a short description of the subject- 
matter to which the expression *' criminal law " is commonly 
1 Dig. Grim. Laio,~259, 260. 



DESCRIPTION OF CRIMINAL LAW. 3 

applied is more useful than any attempt to sum up in a few chap. I. 
words the specific peculiarity by which this is distinguished 
from other parts of the law. The following is such a descrip- 
tion : The criminal law is that part of the law which relates 
to the definition and punishment of acts or omissions which 
are punished as being (1) attacks upon public order, internal 
or external ; or (2) abuses or obstructions of public authority ; 
or (3) acts injurious to the public in general; or (4) attacks 
upon the persons of individuals, or upon rights annexed to 
their persons ; or (5) attacks upon the property of individuals 
or rights connected with, and similar to, rights of property. 

The laws which relate to these subjects may again be 
classified under three heads ; they are — 

First, general doctrines pervading the whole subject. 
These doctrines might be called collectively the conditions 
of criminality. They consist partly of positive conditions, 
some of which enter more or less into the definition of 
nearly all offences, the most important being malice, fraud, 
negligence, knowledge, intention, will. There are also nega- 
tive conditions or exceptions tacitly assumed in all defini- 
tions of crimes, which may be described collectively as matter 
of excuse. 

Secondly, the definition of crimes and the apportionment 
to them of punishments. 

Thirdly, the procedure by which in particular cases crimi- 
nals are punished according to those definitions. 

All the laws which would commonly be described as form- 
ing part of the criminal law of this country might be classified 
under one or other of these heads. 

The description of criminal law which I have substituted 
for a definition in the stricter sense of the word is intended 
to exclude two large and important classes of laws which 
might perhaps be included not only with theoretical pro- 
priety, but in accordance with popular language, under the 
phrase " criminal law." These are, first, laws which constitute 
summary or police offences, and secondly, laws which impose 
upon certain offenders money penalties, which may be recovered 
by civil actions, brought in some cases by the person offended, 
in others by common informers. Summary offences have of 

B 2 



V 



SUMMAEY OFFENCES AND PENAL ACTIONS. 



Chap. I. late years multiplied to such an extent that the law relating to 
them may be regarded as forming a special head of the law of 
England. Such offences differ in many important particulars 
from those gross outrages against the public and against 
individuals which we commonly associate with the word 
crime. It would be an abuse of language to apply such a 
name to the conduct of a person who does not sweep the 
snow from before his doors, or in whose chimney a fire occurs. 
On the other hand, many common offences against person 
and property have of late years been rendered liable to 
punishment by courts of summary jurisdiction, and such cases 
and the courts by which they are tried fall within the scope of 
the subject of this book, and are dealt with in their place. 

Penal actions by which private persons may in particular 
cases protect rights of a peculiar kind are still further re- 
moved from the associations which commonly connect 
themselves with a criminal prosecution.^ If a lecture is pub- 
lished without the lecturer's leave, he has power, after taking 
certain precautions, to seize all published copies, and to re- 
cover a penalty in respect of each of them ; but a proceeding 
to enforce such a right is a civil action, and differs in many 
ways from a criminal proceeding, though it has the practical 
effect of imposing a heavy fine on the person in default. I 
have not, however, left entirely unnoticed either the law 
relating to offences dealt with in a summary way or the law 
relating to penal actions. 

I have intentionally substituted this short description of the 
contents of an actually existing body of law for any definition 
attempting to sum up the characteristics of criminal law in a 
more abstract way, because the only abstractions which in any 
degree correspond with existing facts in reference to law are too 
wide in their sweep to furnish materials for such a definition. 

Austin's definition of a law leaves room for no other 
definition of a crime than an act or omission which the 
law punishes, and the reasons already given show that for 
practical purposes this definition is inconveniently wide. 
I do not think that this result in any way discredits 
Austin's definition of a law, which is nothing more than the 
1 6 & 6 Will. 4, c. 65. 



DISCUSSIONS AS TO EIGHT TO PUNISH. 5 

recognition and record of the fact that there are in all Chap. I. 
human societies rules of conduct, differing from other rules 
of conduct in the circumstance that obedience to them is 
in some cases, and may be in all cases, enforced by the 
collective strength of the society in which they exist. To 
confine the word ''law " to such rules, and to apply it to 
them irrespectively of their goodness or badness and of their 
origin is, I think, the first condition of clearness in all specu- 
lations on the subject. The only alternative is to attempt 
to embody goodness or wisdom in the definition of law, 
one effect of which must be to introduce into all legal 
questions the uncertainty which belongs to all discussions 
upon morality. In the common use of language, however, 
the word " crime " and " criminal " no doubt connote moral 
guilt of a more serious character than that which is involved 
in a bare infringement of law as defined by Austin. The 
effect of this difference between the popular meaning of the 
words '' crime " and " criminal," and that broader signification 
which it would be natural to attach to it in connection with 
Austin's definition of law, is given by restricting the meaning 
of the expression " criminal law " in the manner already stated. 
Much discussion has taken place on subjects connected, 
or supposed to be connected, with criminal law, which I 
leave on one side, because it seems to me at once idle and 
interminable. The subject in question is usually called 
the ^ Eight to Punish. On what ground, it is asked, and 
under what limitations, has Society a right to punish indi- 
viduals ? These questions appear to me to be almost entirely 
unmeaning, and quite unimportant. Societies are stronger 
than their individual members, and do as a fact system- 
atically hurt them in various ways for various acts and 
omissions. The practice is useful under certain conditions, 
and injurious under other conditions. What these con- 
ditions are is a question for legislators. If, all matters 
being duly considered, the legislature consider it expedient 
to punish a given action in a given way, I think they would 
be guilty of weakness if they did not punish that action in 

^ Rossi's Traits du Droit Crimincl is occupied principally by discussioDS 
on this subject. 



O DIFFICULTY OF WRITING HISTORY OF LAW. 

Chap. I. that way altliougli they had no right to do so. If they 
considered it inexpedient that the act should be punished, 
they would be cruel if they punished it, however good a 
right they might have to do so. On this account the whole 
of the discussion as to the right to punish appears to me 
superfluous. I think indeed that from the nature of the case 
any conclusion as to any right alleged to exist antecedently 
to and independently of some law from which it is derived 
must be arbitrary and fanciful. 

Taking this view of the elements of which the criminal 
law is composed, the next question is in what manner its 
history should be related. 

In writing the history of a body of law, a difficulty 
presents itself which is inherent in the nature of the subject, 
and which reduces the writer to a choice between two modes 
of procedure, neither of which can be regarded as altogether 
satisfactory. 

The law of England as a whole, or even the criminal 
law as a whole, can scarcely be said to have a history. 
There is no such series of continuous connected changes 
in the whole system as the use of the word "history" 
implies. Each particular part of the law, however, has 
* been the subject of such changes. The law as to per- 
jury and the definition of the crime of murder have each 
a history of their own, but the criminal law regarded as 
a whole is like a building, the parts of which have been 
erected at different times, in different styles and for differ- 
ent purposes. Each part has a history which begins at its 
foundation and ends when it reaches its present shape, 
but the whole has no history for it has no unity. How 
then is the history of the whole to be related ? If an 
account of each successive change affecting any part is given 
in the order of time, the result is that it is impossible to 
follow the history of any one part, and the so called history 
becomes a mass of unconnected fragments. If, on the other 
hand, the history of each part is told uninterruptedly, there 
is a danger of frequent repetitions. After much considera- 
tion of the subject the second course has appeared to me 
on the whole to be the least objectionable of the two. 



SCHEME OF THIS WORK. 7 

I have accordingly dealt with the subject in the following Chap. I. 
order ; — First, I have given some account of the Criminal Law 
of Rome, which has in many ways exercised an influence on our 
own law. I have then described both the substantive law and 
the criminal procedure of the English before the Conquest. 
Passing to the history of the existing English Criminal Law 
I have given, first the history of the Courts. Under this head 
I have traced, first the history of the ordinary criminal courts, 
namely, the Queen's Bench Division of' the High Court, the 
Assize Courts, the Courts of Quarter Sessions, the Courts of 
the Franchises, and the Welsh Courts. I have next given 
the history of the extraordinary criminal courts, namely, 
Parliament and the Court of the Lord High Steward. Lastly, 
I have given the history of the criminal jurisdiction of the 
Privy Council. 

From the Courts I pass to the procedure followed in them, 
describing in successive chapters, first, the history of the 
procedure for the apprehension, examination, and committal 
or bail of a suspected person ; secondly, the history of the 
various forms of accusation and trial, especially that of trial 
by jury and its incidents ; thirdly, I have given the history 
of the development of trial by jury from the reign of Mary 
to that of George III., when the present system may be 
said to have been established ; fourthly, I have given an 
account of our existing method of trial ; fifthly, I have given 
the history of legal punishments ; sixthly, I have given an 
account of the way in which prosecutions are managed and 
paid for. In conclusion, I have made some general observa- 
tions on our system of criminal procedure viewed as a whole, 
and in particular I have given some account of the part of 
the Draft Code of 1879 which relates to procedure, and of 
the changes proposed by it in the existing law. I have also 
made a comparison between our own system and that of the 
Code d! Instruction Criminelle which prevails in France. 

The second volume begins with a subject which has been 
little considered, and which is intermediate between criminal 
procedure and the substantive criminal law, namely, the 
limits of the criminal law in respect of time, place, and person. 

I next proceed to treat of the substantive criminal law, 



8 SCHEME OF THIS WORK. 

Chap. I. including, first, the theory of criminal responsibility, and the 
exceptions to the general rule that men are responsible for 
their actions; secondly, the leading points in the general 
history of the law of crimes, considered as a whole; 
thirdly, the history of the principal classes of offences into 
which the criminal law may be divided. 

These topics comprise all that need be said on the criminal 
law of England taken by itself, but the law of England re- 
sembles that of Rome in many ways, and perhaps in nothing 
so much as in the fact that it prevails in a great number of 
countries other than that of its origin, and this is perhaps 
more strikingly true of the criminal law than of any of its 
other departments. I have accordingly added to my account 
of the criminal law of England an account of the system 
adapted from it established in India, and some notices of 
other systems founded upon it. 

The work concludes with detailed accounts of several trials, 
chosen as fair specimens of the practical results of English 
and French procedure. 

As to the order in which some of these matters are discussed, 
I may observe that in a systematic exposition of an existing 
body of law it is natural to state first the substantive law, and 
then the law as to procedure by which it is applied to par- 
ticular cases ; but in treating the subject historically it 
seems more proper to begin with an account of Courts and 
other Officers of Justice, as the substantive law is to a great 
extent, perhaps mainly, developed by their decisions and by 
their tacit adoption of rules and principles before they are 
reduced to an express written form. 



KOMAN CRIMINAL LAW. 



CHAPTEE II. 

EOMAN CRIMINAL LAW. 

The oldest part of the Roman Criminal Law was contained Chap. II. 
in the twelve tables. The twelve tables have been recon- 
structed by various authors, of course more or less con- 
jecturally, from the remaining fragments of them. The 
following is M. Ortolan's ^ reproduction of what he numbers 
as the eighth table " de delidis" : — 

1. Libels and insulting songs to be punished by death. 

2. Breaking a limb, unless settled for, to be punished by 
retaliation. 

3. Breaking the tooth or bone of a free man, 300 asses ; of 
a slave, 15 asses. 

4. For insulting another, 25 asses. 

5. For 2 damage to property caused unjustly .... If it is 
accidental, it must be repaired. 

6. For damage caused by a quadruped, repair the damage 
or give up the animal. 

7. An action lies against a man for pasturing his flock in 
the field of another. 

8. ^Whoever injures crops by enchantments or conjures 
them from one field into another .... (punishment un- 
kno'vvn). 

9. Whoever by night furtively cuts or causes to be grazed 
crops raised by ploughing, shall be devoted to Ceres and 

^ Ortolan, Explication Ilistorique dcs I'listituts, i. 114-118. The references 
to Pothier are to Pothier's Pandcctcc Justinianeoc. 4 vols. Paris, 1818. This 
work contains all the texts of the Roman Law, arranged by Pothier in what 
he regards as their natural order. It is extremely useful. 

^ The fragment hero is "Rupitias . . . Sarcito." ' Pothier, i. cxx. 



lO LAWS OF THE TWELVE TABLES. 

AP. II. ^put to death if he is an adult, or if he is under the age of 
puberty shall be flogged at the discretion of the praetor and 
made to pay double value as damages. 

10. Whoever burns a house or a stack of corn near a house 
knowingly and maliciously {dolo) shall be bound, beaten, and 
burnt. If by accident, he must pay damages. If he is too 
poor he must be ^ slightly flogged. 

11. A man who wrongfully cuts another's trees must pay 
twenty-five asses for each tree. 

12. If a man is killed whilst committing theft by night he 
is lawfully killed. 

13. If a thief is taken by day he may not be killed unless 
he resists with a weapon. 

14. A thief taken in the fact {fur manifestus) must be 
beaten with rods, and adjudged (as a slave) to the person 
robbed. If he is a slave he must be beaten with rods and 
thrown from the Tarpeian rock. Youths are only to be 
beaten with rods at the discretion of the magistrate, and 
condemned to repair the damage. 

15. A thief ^discovered by plate and girdle is to be deemed 
to be taken in the fact. 

A thief discovered in possession of the stolen property 
(not by plate and girdle), and a thief who hides the stolen 
property in the house of a third person must restore three 
times the value of the property. 

16. When an action is brought for a theft not manifest, 
the thief must pay twice the value of the money stolen. 

17. Stolen property cannot be acquired by usucaption. 

18. 4 The interest of money is 8 J per cent, per annum. A 
usurer who lends at a higher rate forfeits fourfold. 

19. Breach of trust with a deposit is punished by doubie 
damages. 

20. A guardian who appropriates the property of his ward 
forfeits double the amount. 

1 Pothier (i. cxxi.) says by hanging. ^ Levius castigator. 

3 ^^ Lance licioque conceptum" — a solemn search made with certain sym- 
bolical solemnities. 

^ " Si quis unciario foenore amplius foenerassit quadruplione luito. " Unciarium 
foenus is 1 per cent, per annum according to Pothier, 8g according to Ortolan. 
See also an account of the controversy as to the meaning of the phrase in the 
Dictionary of Antiquities, art. "Foenus." 



ROMAN CRIMINAL COURTS. II 

21. A patron who cheats his client is devoted to the gods Chap. II. 
^(and may be killed by any one). 

22. A person who, having been a ^ witness in any business 
or contract, afterwards refuses to give his evidence, becomes 
infamous and incapable of making a will. 

23. Whoever gives false evidence must be thrown from the 
Tarpeian rock. 

24. Whoever knowingly and maliciously kills a free man 
must be put to death. ^Let him who uses wicked enchant- 
ments, or makes or gives poisons, be deemed a parricide. 

25. ^If a man kills his parent, veil his head, sew him up in 
a sack, and throw him into the river. 

26. No one is to make disturbances at night in the city 
under pain of death. 

The excessive curtness of these provisions implies the ex- 
istence of an all but unlimited discretion in those who had 
to administer the law. We know, indeed, from other sources, 
that in ancient Rome the courts and magistrates practically 
made their own laws to a great extent. 

The laws of the Twelve Tables were of less importance 
in the history of the development of Roman law than the 
institutions by which they were carried into execution. 

Criminal jurisdiction was originally in the hands of the 
Comitia Centuriata, or Tributa, and in some cases in those 
of the Senate. ^The Comitia Centuriata could sentence to 
death ; the Comitia Tributa to exile. The Senate had an ill- 
defined jurisdiction which did not usually extend to capital 
cases. In cases of importance the Comitia and the Senate 
exercised their powers directly ; but in other matters they 
delegated their powers to quaestors (inquirers, commissioners), 
who were appointed at first for particular cases, and after- 
wards for particular classes of cases. ^ In very early times 
there are traces of standing qua^stores parricidii. In later, 
though still in early times, ^we hear of a qusestio de con- 
jurationibus, a qusestio de veneficiis, a quaestio de homicidiis 
established to deal with particular offences which happened 
to be common at a particular period. This led in time to the 

* Pothier, i. cxxvii. 2 Libripens. * Pothier, i. cxxix. 

* lb. cxxxi. « Ortolan, i. 216. » Jf6. 182-3. ^ 7/,. 217. 



12 PUBLICA JUDICIA. 

Chap. II, establishment of standing commissions (quaestiones perpetuae), 
for the purpose of dealing with particular classes of offences. 

Each of them was estabUshed by a special law, and con- 
sisted of a praetor chosen annually, assisted by a sort of jury, 
consisting sometimes of as many as 100 judices, who were 
summoned for each particular case. 

These courts, the Roman legislative assemblies, and after- 
wards the emperors, produced, in the course of centuries, a 
body of law, the comments upon or fragments of which fill 
the 47th and 48th books of the Digest, and the 9th book of 
the Theodosian Code. From these authorities we can acquire 
a knowledge of the Roman law relating to the definition 
of crimes and also of the procedure for their punishment. 

The Roman lawyers in the days of Justinian divided crimes 
into three classes, according to the manner in which they were 
prosecuted, namely, Publica Judicia, Extraordinaria Crimina, 
and Privata Delicta. These I shall notice in their order. 

I. PUBLICA JUDICIA. 

The Publica Judicia were the representatives of the old 
" quaestiones perpetuae." They related to crimes which 
were specifically forbidden by particular laws under defined 
penalties, capital (death or exile) or not. 

Extraordinaria Crimina were offences for which no special 
quaestio, and no specific punishment, were provided. The 
punishment was (within limits) at the discretion of the 
judge, and the injured party might prosecute, though he 
was considered in doing so to protect rather the public 
interest than his own. 

Privata Delicta were offences for which a special action 
was set apart involving a definite result for the injured party, 
such, e.g., as the actio furti or actio injuriarum. 

The classification is a little like a classification of English 
crimes, as being either (1) Treason or felony ; (2) Misdemea- 
nours at common law ; or (3) Torts ; and there is something 
of a resemblance between the way in which, in the course of 
ages, the Publica Judicia and the Extraordinaria Crimina 
came to be formed into a single class of offences, as to all ot 



CEIMES TRIED AS PUBLICA JUDICIA. 13 

which the punishment was more or less discretionary, and the Chap. II. 
gradual legislative removal in our own country of nearly every ' 

substantial distinction between felony and misdemeanour. 

The crimes included under the head of Publica Judicia 
were those which were forbidden by the following laws : — 
^Lex Julia Majestatis, ^Lex Julia de Adult eriis, ^Lex Julia 
de Vi Publica et ^Privata, ^Lex Cornelia de Sicariis et Vene- 
ficiis, ^Lex Pompeia de Parricidis, '''Lex Cornelia de Falsis, 
^Lex Julia Repetundarum, ^Lex Julia de Annona, ^*^Lex 
Julia Peculatus et de Sacrilegiis et de Residuis, ^^Lex Julia 
Ambitus, ^^Lex Fabia de Plagiariis. 

The text of these laws has not in any instance been pre- 
served, though the style of the comments made upon them 
by the different jurists quoted in the Digest looks as if they 
had given in several instances the very words of the law. 
In the main, however, the Digest consists of observations, 
and of notes of decisions upon them; and in other clas- 
sical authors there are passages which enable us to form 
some sort of estimate, or at least reasonable conjecture, as 
to the position which they held in the history of Roman 
law. They seem to have been not altogether unlike our 
modem Consolidation Acts, and their very words seem to 
have been as carefully noted and insisted upon as the word- 
ing of our own acts of Parliament. I should think it very 
doubtful whether they defined the fundamental terms which 
occur in them, any more than the Consolidation Acts of 
1861 define murder and theft. 

^3 Thus, for instance, the Lex Julia Majestatis had been pre- 
ceded by a provision in the Twelve Tables, the Lex Gabinia, 
the Lex Apuleia, the Lex Varia, and the Lex Cornelia, just 
as the Offences Against the Person Act was preceded by the 
statute of Stabbing, the Coventry Act, the Waltham Black 
Act, the Consolidation Act of George IV., and many others. 

Roman Criminal Law does not appear to have been re- 
duced to any very definite form by those who are treated as 
authorities by the compilers of the Digest. The titles follow 



» Dig. xlviii., Tit. 4. 


» lb. 6. 


« Jb. 6. 


< Jb. 7. 


» lb. 8. 


« Jb, 9. 


7 Jb. 10. 


8 Jb. 11, 


» Jb. 12. 


^0 lb. 18. 


" Jb. 14. 


" Jb. 15. 


1' Pothicr, iv. 407—8. 









14 L^SA MAJESTAS. 

Chap. II, each other in no particular order, and the contents of the 
titles are arranged as far as can be judged at random. I 
notice the offences in the order in which they stand. 

The Lex Julia Majestatis. — ^"Majestas," says Cicero, 
" residet proprie in populo Romano. Hanc minuere dicitur, 
*' qui de dignitate aut amplitudine aut potestate Populi 
" Romani, aut eorum quibus populus potestatem dederit 
" aliquid derogat." The offence of Majestas was divided 
into '' perduellio " and "'Isesa majestas." Perduellio in- 
cluded offences closely resembling treason by levying war 
or assisting the Queen's enemies, and inciting to mutiny. 
It also included the offence of governors refusing to give up 
their provinces, or the command of their forces, and some 
other matters which with us would be dealt with under the 
Mutiny Act. 

Lsesa Majestas included every kind of act by which public 
authority was resisted, or usurped by a private person, or by 
which any sort of disrespect was shown to the Emperor. 
The interpretation put upon the law on this subject varied 
according to the temper of the different emperors. It 
reached at times a depth of servility of which it is difficult 
in our days to form an estimate. For instance, ^ '' Non con- 
" trahit crimen majestatis qui statuas Caesaris vetustate cor- 
" ruptas reficit," which implies that some one thought other- 
wise. On the other hand, they sometimes rose to a theatrical 
magnanimity. ^ '' Si quis," wrote Theodosius, " modestiae 
" nescius et pudoris ignarus, improbo petulantique maledicto 
" nomina nostra crediderit lacessenda ; ac temulentia turbu- 
" lentus, obtrectator temporum nostrorum fuerit ; eum poense 
''nolumus subjugari neque durum aliquid nee asperum 
" volumus sustinere ; quoniam si id ex levitate processerit 
" contemnendum est, si ex insania miseratione dignissimum, 
"si ab injuria remittendum." The case that the emperor 
might deserve what was said of him does not suggest itself. 

By the law of the Twelve Tables Majestas was punished by 
flogging to death. Under the republic it was punished by 
exile. Afterwards by death. 

Lex Julia de Adulteriis. — The Lex Julia de Adulteriis 

1 Pothier, iv. 408. « Dig. xlviii. 4, 5. ^ Cod. ix. 7. 



JULIA DE ADULTERIIS. I 5 

appears to have been directed against sexual crimes of Chap. ii. 
every sort. It punished adultery (on the part of the wife 
hut not on the part of the husband), fornication (stuprum) 
in certain cases, incest, polygamy, unnatural offences, and 
pimping. It is unnecessary to say much on this subject, 
but one or two points may be mentioned on account of a 
possible connection between them and part of our own law. 
A father had a right to kill both his married daughter and 
her accomplice if she was taken in adultery either in his 
house or in her husband's. The husband had no such right 
as to his wife in any case, and no such right as to her 
accomplice unless he was ^an infamous person or a slave, 
taken not in his father-in-law's house, but in his own. If, 
however, the husband did kill the adulterer irregularly he 
was less severely punished than in other cases of homicide. 
'^'' Si legis auctoritate cessante, inconsulto dolore adulterum 
*' interemit quamvis homicidium perpetratum sit, tamen, 
" quia et nox et dolor Justus factum ejus relevant potest 
" in exilium dari." By one of the Novels (cxvii.) a man 
might kill as an adulterer any person whom he found in 
his wife's company either in that person's house or in the 
husband's house, or in an inn or "in suburbanis," after 
being thrice warned in writing and in the presence of three 
witnesses not to see her. 

The father's right to kill (jus occidendi) was rather 
wider, but was narrowly limited. '' Permittitur patri tarn 
"adoptive quum naturali, adulterum cum filia cujuscumque 
"dignitatis, domi suse, vel generi sui deprehensum su^ 
"manu occidere." If the father was not himself emanci- 
pated he had not the right in question. It was to be 
exercised in respect of an offence committed in his own 
house or in that of his son-in-law only. ^The offenders 

^ Pothier, iv. 427. ** Infames et eos qui corpore quaestum faciunt." They 
are elsewhere enumerated pimps, showmen, dancers, and singers, persons 
convicted l)y a publicum judicium, the freedman of the husband, the wife, 
the father, moth(;r, son, or daughter. 

- Pothier, iv. 428. 

^ The text is very curious. *' Quod ait lex Incontinenti filiam occidat ; 
** sic erit accipiendum, ne occiso hodie adultero reservet, et post dies filiam 
" occidat ; vel contra. Debet enim prope uno ictu et uno impetu utnimquo 
** occidere icquali ira adv(!rsuH utrumque sumpta. Quod si non aUcctavit sed 
** dum adulterum occidit profugit filia, et interpositis horis apjirehensa est a 
** patrequipersequebaturiuconthienti videbituroccidisso." Dig. xlviii.5 23,4. 



1 6. VIS PUBLICA ET PRIVATA. 

Chap. II. must be taken in the fact. It must be done at once. It 
' was immaterial which was killed first, but if the adulterer 

only was killed and the daughter spared, the father was guilty 
of murder under the Lex Cornelia. If, however, the adul- 
terer was killed and the adulteress having been wounded 
with intent to kill recovered, ''verbis quidem legis non 
"liberatur" (pater) "sed Divus Marcus et Commodus rescrip- 
"serunt impunitatem ei concedi." ^ The reason for the greater 
latitude given to the father is thus stated : "Plerumque pietas 
'' paterni nominis consilium pro liberis capit. Cseterum mariti 
" calor et impetus facile decernentis fuit refrsenandus." This 
is a reason against killing at all. It hardly seems probable 
that any legislator should have devised such a. law entirely 
on its merits, and it probably requires some historical explana- 
tion. Perhaps it is a relic of the ancient law which regarded 
the wife as her husband's daughter, and which gave every 
father power of life and death over his children. This power 
would, while it was in force, give the husband the right to 
kill the adulterous wife, but he would do so in his paternal 
character, and thus in later times the right would be restricted 
to the natural father. I mention this law because of its 
analogy to our own law as to one species of provocation 
which reduces murder to manslaughter. ^The punishment of 
adultery was ''relegation" to an island, the woman losing 
half her dower and a third of her goods, and the man halt 
his goods. 

Lex Julia de Yi Public a et Privata. — The Lex Julia 
de Vi Publica consolidated several earlier laws which punished 
acts of violence not falling within the law against Majestas 
on the one hand or the law " De Sicariis et Veneficiis " on 
the other. There is no trace of any specific definition of 
these vague expressions having been contained in the law, 
and it does not appear whether there was only one law on 
the subject divided into two heads, or two distinct laws; 
but the different texts illustrating " Vis Publica " suggest 
some such definition as — Illegal violence not otherwise 
punishable, in which the public are interested either by 
reason of the character of the offender or by reason of the 
1 Dig. xlviii. 5, 22, 4. 2 Pothier, iv. 425. 



VIS PUBLICA ET PRIVATA. * 1 7 

character of the person injured, or by reason of the purpose Chap. II. 
for which it is employed. 

The following were cases of the offence : — 

A public officer inflicting death or any other corporal 
punishment on a Roman citizen pending an appeal. 

Assaults upon or insults to ambassadors. 

Levying new taxes without authority. 

The acts which, under our mediaeval law would have been 
described as maintenance or would have fallen under the 
statutes against badges and liveries were " Vis Publica." 
Thus, ^''qui dolo malo fecerit quominus judicia tuto exer- 
" ceantur, aut judices ut oportet judicent." ^''Qui turbse 
" seditionisve faciendse consihum inierint, servosve aut liberos 
" homines in armis habuerit," and the extent of the rule is 
proved by the exceptions made to it. '* Exceptus est qui propter 
" venationem habent homines qui cum bestiis pugnent minis- 
" tros enim ad ea habere conceditur." Vis Publica also included 
what we should call forcible entry by armed men. ^ " Qui homi- 
" nibus armatis possessorem domo agrove suo aut navi sua de- 
" jecerit, expugnaverit concursu." It also included many kinds 
of riots. * " Qui coetu . . . incendium fecerit . . . quive fecerit 
"quominus sepeliatur" — ^''qui convocatis hominibus vim 
" fecerit quo quis verberetur et pulsetur neque homo occisus." 

Rape was punished as Vis Publica, and not under the 
Lex Julia de Adulteriis. 

Vis Privata was a milder form of Vis Publica, indeed it is 
doubtful whether one at least of the texts qiioted above does 
not refer to it. The characteristic feature of Vis Privata seems 
to have been taking the law into one's own hands. Marcus 
Antoninus in an imperial rescript says : — ^ " Tu vim putas 
" esse solum si homines vulnerentur ? vis est et tunc quoties 
" quis id quod deberi sibi putat, non per judicem reposcit." 

The punishment of Vis Publica was exile, and in some cases 
death ; the punishment of Vis Privata confiscation of the third 
of the offender's property and loss of certain civil rights. 

The Lex Cornelia de Sicariis et Veneficiis. — The 
Lex Cornelia de Sicariis et Veneficiis was passed by Sylla 

1 Dig. xlviii. 6, 10. * Pothicr, iv. 436. * Dig. xlviii. (5, 

* Jb. (5, .0. 5 Jb. (], 10. « Jb. 7, 7. 

VOL. I. C 



1 8 " HOMICIDE. 

Chap. II. and had thus been in force about 600 years when the 
Digest was compiled. It was extended to incendiaries, and also 
in the time of Diocletian to astrologers and similar impostors. 

The main subject of this law is homicide. The great 
extension given to it by commentators, and the want of 
any sort of systematic arrangement of the texts of the 
Digest, as well as the title of the law which might be 
literally translated, ^ " Stabbers and poisoners," make it 
probable that the original law itself was very curt and 
general. It seems never to have been elaborated with any 
system, but the principal points which long afterwards pre- 
sented themselves to English lawyers presented themselves 
to the various jurists and emperors, and received at their 
hands solutions which, however fragmentary and hesitating, 
have a resemblance to those of the English courts. 

As to the persons to whom the law extended, it seems to 
have applied in the time of the Antonines to slaves as well as 
freemen. ^ " Qui hominem occiderit punitur, non habita 
" differentia cujus conditionis hominem interemit." The 
moment at which a child became a human being for this 
purpose seems to have been a moot point. 

The curious points which English lawyers have considered 
with so much care as to the nature of the connection necessary 
to constitute homicide between the act causing death and 
the death caused by it do not seem to have occurred to the 
Roman lawyers, but there are various passages in the Digest 
which state the principal cases in which the intentional in- 
fliction of death was considered justifiable. They are all 
reducible to the cases of self-defence and the arrest or 
punishment of criminals. 

The Roman doctrine as to the degrees of homicide is 
shortly summed up in a rescript of Hadrian's. The rule was 
that the degree of guilt depended on the offender's intention 
as displayed by the circumstances of his offence. ^ *' Eum 
" qui hominem occidit, si non occidendi animo hoc admisit 
" absolvi posse. Et qui hominem non occidit sed vulneravit 

1 ** Sicarii proprie sunt latrorxes cultellis utentes recurvis ad similitudinem 
** eorum quos Romani sicas dixere qui ita breves erant ut occultari sinu vestis 
** possent." — Pothier, iv. 4S9. 

^ Dig. xlviii. 8, 1, 2. 3 /j. s, 1, 3. 



PARRICIDE. 1 9 

" ut occidat pro homicida damnandum. Et ex re constitu- Chap. II. 

" endum hoc. Nam si gladium strixerit et in eo percusserit 

" indubitate occidendi animo id eum admississe, sed si clavi 

" percussit aut cuccuma " (an iron-bound stick) "in rixa, 

'' quamvis ferro percusserit tamen non occidendi animo 

" leniendam poenam ejus qui in rixa casu magis quam 

" voluntate homicidium admisit." 

Killing by negligence was not within the Lex Cornelia, 
though it might subject the offender to an " extraordinarium 
" judicium." The only form of provocation which seems to 
have been recognised as affording grounds for diminishing 
the punishment was the case of adultery already referred to. 

^ Special provision was made for the offence of poisoning, as 
to which the law was extremely severe, applying to every 
one " qui venenum necandi hominis causa fecerit, vel ven- 
" diderit." Poisoning is naturally an object of excessive 
dread in an age in which physical science is at a low ebb, and 
when belief in witchcraft and other "maleficia" prevails. 
The famous case of the cook who was boiled to death by 
Act of Parliament in Henry VIII. 's time, and Sir E. Coke's 
account of the *' Great Oyer of Poisoning," are parallel 
instances. ^ In the French Code Penal poisoning is dis- 
tinguished as a special offence. 

Lex Pompeia de Parricidiis. — Parricide was kilhng any 
relation nearer than or in the degree of a first cousin. 

Parricide as well as poisoning must have fallen under the 
Lex Cornelia de Sicariis, but the distinction is not without 
an analogy in English law. It may be compared to petty 
treason, which ceased to be distinguished from murder only 
in 1828, by the operation of 9 Geo. 4, c. 31, s. 52. 

Homicide under the Republic was punished by confisca- 
tion of goods and imprisonment in an island ; under the 
Antonines by death, ^ " Nisi honestiori loco positi fuerint ut 
" poenam legis sustineant." Common people were thrown 
to the beasts. There was no special punishment for poi- 
soners, or apparently for parricides, unless the person killed 

1 Dij<. xlviii. 8, 3. 

' Art. ;J01. " KstfiualifuWimpoiHOTinement tout attim tat i\la vied'unoporsomui 
" par I'eirct (!<• .substances ([ui |HMiv(;nt donner la niort plus on moins promptt - 
" riiont, d(i <[U('-l(iue nianitro ([uo crs substances aiuiit ^t« eniployees ou adniinis- 
" trees, et (jiu-lles (|u'eu aicait «;t«'' les suites." * Dij<. xlviii. 8, 3, 5. 

c 2 



20 CORNELIA DE FALSIS. 

Chap. II. was a father or mother, in which case the offender was burnt, 
that punishment having been substituted for the ancient one 
of drowning with a cock, snake, and dog. Burning was also 
the punishment of incendiaries. 

Lex Cornelia de Falsis. — The Lex Cornelia De Falsis 
was divided into two heads, namely, the lex testamentaria, 
the main subject of which was forging and suppressing 
wills, and nummaria, the main subject of which was counter- 
feiting money. ^Paulus's statement of the effect of the 
law, seems as if he had preserved its very words, "Qui 
" testamentum amoverit, celaverit, eripuerit, deleverit, inter- 
" leverit, subjecerit, resignaverit, quive testamentum falsum 
" scripserit, signaverit, recitaverit dole malo, cujusve dolo 
" malo id factum erit." This branch of the law was after- 
wards extended to other offences. A provision was made 
either by the Emperor Claudius, or by a decree of the 
senate in the time of Tiberius, subjecting to the penalties 
of the Lex Cornelia, every one who when drawing up the 
will or codicil of another inserted in his own hand a 
legacy to himself, or (as the law was interpreted) to any 
person under his power. ^ Passages in the code seem to imply 
that this was meant as a precaution against fraud, and that 
even the testator's order was no excuse. " Senatus consulto 
" et edicto Divi Claudii prohibitum est eos qui ad scribenda 
" testamentaadhibentur2"Z^amms dictante ^^s^a^orealiquodemo- 
" lumentum ipsis futurum scribere. Et poena legis Corneli^B 
" facienti irrogata est, cujus veniam deprecantibus ob ignoran- 
" tiam et profitentibus a relicto discedere, amplissimus ordo 
" vel divi principes veniam raro dederunt." The same inference 
seems to follow from texts which show the effect of a special 
and general ratification by the testator in particular cases. 

The Lex Cornelia Testamentaria came in process of time 
to be extended to every sort of instrument other than 
wills. 3 XJlpian says generally, " Poena legis Cornelise 

^ Dig. xlviii, 10, 2. Compare the language of 24 & 25 Vic. c. 98, s. 2 : 
"Whoever, with intent to defraud" {dolo malo), "shall forge, or alter" 
(interleverit), "or shall offer, utter, dispose of, or put off" {? recitaverit), 
"knowing the same to be forged or altered, any will, testament, codicil, 
" or testamentary instrument," The 24 & 25 Vic. c. 96, s. 29 makes it penal 
to "cancel" [deleverit), " obliterate, or conceal" {cgZa7/-eri(() "any will," &c, 

2 Cod. ix. 23, 3, and compare laws 4 6. * Dig. xlviii." 10, 9, 3. 



CORNELIA NUMMARIA. 21 

" irrogatur ei qui quid aliud quam in testamento sciens Chap. II. 
" dolo malo faisum signaA^erit signarive curaverit." And 
Paulus and Marcian say the same as to all who falsify 
accounts, registers, contracts, or other writings, sealed 
or not. 

A man might indeed commit the " crimen falsi" in a ^genuine 
document if he dated it falsely, or otherwise made it appear 
to be what it was not. The law was also extended to giving 
and suborning false evidence, and to the corruption of judges. 
Modestinus extends it still further. He says : ^ " De impudentia 
" ejus qui diversa duobus testimonia prsebuit cujus ita anceps 
" fides vacillat quod crimine falsi teneatur nee dubitandum 
" est." 

The law indeed applied to certain fraudulent contracts, to 
the fraudulent assumption of a false name, a.nd as Paulus 
says, by a constitution of Adrian to one "who sells the 
" same thing to two different people." 

The punishment of " faisum " under the Antonines was, 
in the case of a person of low rank, imprisonment in the 
mines, in the case of a person of higher rank, forfeiture of 
goods, and relegation to an island. 

The Lex Cornelia Nummaria, like the Lex Testamentaria, 
is referred to in terms which resemble those of the parallel 
English enactments. ^ " Qui nummos aureos argenteos 
*' adulteraverit, laverit, conflaverit, raserit, corruperit vitia- 
" verit." I do not find express mention in the Corpus Juris 
of the offence of passing bad money, but a characteristic 
provision occurs as to the refusal of good money. It was put 
on the same footing as coining on account of the disrespect 
shown to the image and superscription of the prince. The 
text quoted above concludes, " vultuve signatam monetam 
" prseter adulterinam reproba verit." Constantine said : 
* " Omnes solidi in quibus nostri vultus ac voneratio una 
" est, uno pretio estimanda sunt. . . Noc enim qui 

1 This is also the law of England— sec R. v. Ritson, L.R. 1 C.C.R. 200. 

2 Dig. xlviii. 10, 27, 1. 

' Pothier, iv, 455. Cf. 24 & 25 Vic. c. 99, s. 4 : " Impair, diminish, or lighten 
" any of the Queen's gold or silver coin ; " and s. 3 : *' Wash, case over, or 
" colour any piece of gold or silver." 

■» Pothier, iv. 456. 



2 2 JULIA REPETUNDARUM — ANNONA. 

Chap. II. " majore habitu faciei extenditur majoris est pretii ; aut qui 
" angustiore expressione concluditur minoris haberi credendus 
'* est quum pondus idem existat." 

The use of false measures, the assumption of marks of 
dignity, and changing children, were regarded as species of 
" the crimen falsi," or as analogous to it. 

Lex Julia Eepetundarum. — ^ The Lex Julia Repetun- 
darum punished every sort of official extortion, being a sort 
of Consolidation Act replacing five earlier enactments. 
The law provided that no one was to receive anything 
whatever, either for giving or for withholding any judicial 
or official order. " Tenetur qui, quum aliquam potesta- 
" tem haberet, pecuniam ob judicandum discernendumve 
" acceperit." 

The Lex Julia is also supposed to have contained pro- 
visions not altogether unlike those of certain Acts of Parlia- 
ment relating to British officers in India. By the rules of 
the Indian Civil Service a civilian may not hold land in his 
own district, and by Act of Parliament it is unlawful for any 
one whatever to make any present to him. By the Lex 
Julia Repetundarum, ^ " Quod a prseside sui procuratore vel 
'* quolibet alio in ea provincia in qua administrat, licet 
" per suppositam personam comparatum est, infirmato con- 
" tractu vindicatur, et sestimatio ejus fisco infertur. Nam 
" et navem in eadem provincia in qua quis administrat 
" sedificare prohibetur." 

The offence of "repetundarum" became in the time of 
the Antonines an " extraordinarium crimen," instead of a 
" publicum judicium," except indeed in cases in which the 
order corruptly given involved consequences of extreme 
importance, as, for instance, when a judge was bribed to have 
a man put to death. In such instances the punishment was 
capital. In others it was fourfold damages. 

Lex Julia de Annona. — ^ This was a law against what 
was formerly called forestalling and regrating in English 

^ Dig. xlviii. 11, 3. Marcian. He gives elsewhere a much longer enu- 
meration : "Ne quis ob judicem arbitrumve dandum mutandum juben- 
" dumve ut judicet ; neve ob non dandum non mutandum non jubendum 
" ut judicet," &c. ; and see Pothier, iv. 457- 

2 Pothier, iv. 458. 3 j)ia xlviii. 12. 



PECULATION — SACRILEGE — BALANCE. 2 3 

law^anticipating and so raising the price of food in the C hap. II. 
market. 

Lex Julia Peculatus, et de Sacrilegiis et de Residuis. 
— These three offences were different forms of the offence 
of public dishonesty. ^The law against "peculators" for- 
bad "ne quis ex pecunia sacr^, religios^, publicave auferat, 
" neve intercipiat, neve in rem suam vertat, neve faciat quo 
" quis auferat, intercipiat, vel in rem suam vertat, nisi cui 
" utique lege licebit. Neve quis in aurum, argentum, ses 
*• publicum quid indat, neve immisceat, neve quo quid indatur 
" immisceatur, faciat sciens dolo malo quo id pejus fiat." 
In other words it was theft of, or injury to, anything which 
was either consecrated to the gods, or was public property. 
The following illustrations are given of cases of peculation. 
Workmen in the mint coining too much money and carrying 
off the surplus; ^ carrying off title-deeds to state lands, and 
fraudulently altering them, and various frauds and irregu- 
larities as to the public accounts. 

The punishment of peculation was the mines, or exile 
and forfeiture of property, according to the rank of the 
offender. 

Sacrilege was the stealing of something at once public and 
sacred, but as appears from ^a passage in Quintilian, the 
definition was not free from doubt. Sacrilege was punished 
with death, sometimes by burning, often by throwing to 
the beasts. Parts of the temples were peculiarl}^ sacred. 
* " Qui sacrarium ingressus interdiu vel noctu sacrarium 
" aliquid inde aufert excsecator ; qui vero extra sacrarium 
** e templo reliquo aufert verberatus et tonsus exilic mulc- 
" tator," says Ulpian, which seems inconsistent with what 
ho had said before as to capital punishment. 

^ Dig. xlviii. 13, 1. 

'■' •* Qui tabulam fcroam legis formamve agroniin aut quid aliud continentom 
** refixerit vol (juid indc iniinutaverit." — Dig. xlviii. 13, 8. 

^ '* i}m privatani ixicuniani do tciiiplo .surripuit sacrilegii reus est. Culpa 
" Tuanife.stj\. Quscstio eat an huic crimiui noiiien ([uod est in lege conveniat. 
" Krgo am])igitur an lioc sacrihigiuni sit. Accusator <jnia (h; templo sit surrepta 
" i)e('unia utitur hoc nomine. Keu.s cpiia jtiivatam .surripucrit negatesse sacrilc- 
" gium sed furtum. Actor ergo ita liniet sacrilegium est surripuero aliijuid de 
"sacro. Reus ita finiet sacrilcgium est surnpere aliquid sacn." — Quiutiliun, 
Jrif^t. vii. 8. 

* Potliier, iv. 462. 



24 EXTRAORDINARIA CRIMINA. 

Chap. II. Theodosius and others assimilated heresy to sacrilege. 
They put on the same footing, doubting the decisions of 
the Emperor, and (very strangely) the attempt to get ap- 
pointed governor of the province in which a man was 
born. 

The law "De Residuis" applied to those who, being ac- 
countable to the public, did not fully account for what they 
had received. 

Lex Julia Ambitus. — ^ The Lex Julia Ambitus seems 
to have consolidated the provisions of ten previous laws. It 
was passed by Augustus. It was probably a sort of Corrupt 
Practices Act, but when popular election was replaced by 
the appointment of officers by the Emperor, the law became 
obsolete. 

Lex Fabia de Plagiariis. — ^ Plagium was the crime of 
manstealing — selling a free man as a slave. The punishment 
was at first fine, but afterwards the mines or death. 



II. EXTRAORDINARIA CRIMINA. 

The second class into which crimes were divided were 
*' extraordinaria crimina," in translating which expression it 
must be remembered that " crimen " means accusation and 
not offence, and that " extraordinarium " refers to the nature 
of the procedure, and not to the quality of the offence. The 
expression indicates, in fact, a less formal mode of procedure 
than had originally been appropriated to the Publica Judicia, 
though, as I shall have occasion to explain more fully under 
the head of Procedure, the distinction between the two 
classes was of hardly any practical importance when the 
Pandects were compiled. The "extraordinaria crimina" 
noticed in the 47th book of the Digest are as follows : — 

Family Offences. — ^ " SoUicitatores alienarum nupti- 
" arum, itemque matrimoniorum interpellatores " — persons 
who attempted to seduce or procure the divorce of a married 
woman. Also those who corrupted youths of either sex. 

1 Dig, xlviii. 14 ; Pothier, iv. 463. ^ lb. 15. ^ 

* Ih. xlvii. 11, 1. These come under the general head of " extraordinaria 
crimina " in the Digest. 



I 



NEW RELIGIONS AND OTHER OFFENCES. 25 

Introducing New Eeligions. — ^" Si quis aliquid fecerit Chap, il 
*' quo leves hominum animi superstitione numinis terre- 
" rentur." " Qui novas, et usui vel rationi incognitas 
" religiones inducunt ex quibus animi hominum moveantur." 
These and the laws against unlawful societies were the 
laws by which the Christians were persecuted. This was 
probably the law to which the Philippians appealed against 
Paul and Silas. " These men being Jews do exceedingly 
'' trouble our city, and teach customs which are not lawful 
*' for us to observe nor to receive, being Komans " (Acts xvi. 
20, 21). 

Engrossing. — ^To raise the price of corn was an ''extra- 
ordinarium crimen." It does not appear where the line 
was drawn between this offence and that which fell under 
the Lex Julia de Annona. 

Abortion. — ^ A woman who procured her own miscarriage 
was liable as for an " extraordinarium crimen," but not 
under the Lex Julia against homicides. An unborn child 
was not regarded as a human being. 

Vagabonds. — *An extraordinary prosecution lies against 
vagabonds who carry about snakes and show them, if any 
one is injured by the fear they cause. This is a little 
like our law against rogues and vagabonds. 

Special Offences in Particular Provinces. — ^ Of 
offences of this kind two are mentioned in the Digest, 
namely, in Arabia crK07r6\Lcr/jLo<;, which consisted in laying 
stones on an enemy's ground as a threat that if the owner • 
cultivated the land " malo leto periturus esset insidiis 
** eorum qui scopulos posuissent "—a sort of primitive threat- 
ening letter, not unlike letters still occasionally delivered in 
Ireland to prevent the occupancy of lands from which a 
tenant has been ejected. 

^ In Egypt the breach of chomata, dykes of the Nile, was 
a special offence. 

Scopelismus was punished by death. The breach of banks 
by the mines, at first, and afterwards by burning alive. It 
is rather singular that these and no other local offences • 

' Pothior, iv. 375. " Dig. xlvii. 11, 6. =* lb. 11, 4. 

•» If>. il, 11. » 10. 11, 9. « lb. 11, 10. 



26 TOMBS — CONCUSSIO. 

Chap. II. should be mentioned in the Digest. It would have been 
natural to expect that in so vast an empire many local laws 
must have been in force which would be deserving of notice. 

Offences Relating to Tombs. — The texts given in the 
12th title of the 47th book of the Digest mix up inextric- 
ably the civil remedies relating to the violation of tombs, 
with provisions as to criminal prosecutions. ^ Tombs were 
violated by burying other bodies in them, by using them as 
habitations, and in various other ways, and the offender was 
in most cases liable to an action for a penalty sometimes 
of 100 and sometimes of 200 aurei. Those who plundered 
dead bodies were punished capitally, or by the mines, especi- 
ally if they committed their crime in armed bands. 

CoNCUSSio. — ^Concussio is defined by Cujas, "terror in- 
"jectus pecuniae alteriusve rei extorquendse gratia." It 
answers in fact to our extortion by a public officer. A text 
from Macer shows that the offence bordered, so to speak, on 
the ''publicum judicium" of the "crimen falsi." 

^ " Concussionis judicium publicum non est, sed si ideo 
"pecuniam quis accepit, quod crimen minatus sit, potest 
"judicium publicum esse ex senatus consul tis quibus poena 
" Legis Cornelise " (^.e. Falsi) " teneri jubenturqui in accusa- 
" tionem innocentium coierint, quive ob accusandum vel non 
" accusandum, denuntiandum vel non denuntiandum testimo- 
"nium pecuniam acceperint." No reference is made to the 
Lex Julia Repetundarum, which is stated by Macer somewhat 
• less widely than by Marcian who belongs to the same period. 
Macer's statement of the Lex Julia Repetundarum reads like 
a word for word quotation : * " Prsecipit ne quis ob judicem 
"arbitrumve dandum mutandum jubendumve ut judicet, 
"neve ob non dandum non mutandum non jubendum ut 
"judicet; neve ob hominem in vincula publica conjiciendum 
" vinciendum vincirive jubendum, exve vinculis dimittendum; 
" neve quis ob hominem condemnandum absolvendumve ; 
"neve ob litem sestimandam, judiciumve capitis pecuniaeve 
" faciendum vel non faciendum aliquid acceperit." 

1 " Praetor ait . . si quis in sepulcliro dolo malo habitaverit." — Dig. xlvii. 
12 3 
'^ Pothier, iv. 379. 3 Dig, xlvii. 13, 2. ^ 75^ ^Iviii. 11, 7. 



ABIGEI — PREYAEICATION — RECEIVERS. 2 7 

Upon the whole it may be that " concussio " and " repe- Chap. Ii. 
tundamm " may be likened to common extortion and judicial 
corruption respectively. 

Abigei. — Theft in general was treated as a tort, but some 
particular kinds of thieves were subject either to "publica 
"judicia," or to " extraordinaria crimina." Amongst the 
latter were "abigei" "drivers," or cattle thieves: ^"qui 
" pecora ex pascuis, vel ex armentis subtrahunt et quo- 
" dammodo depraedantur ; et abigendi studium quasi artem 
■" exercent, equos de gregibus vel boves de armentis abdu- 
" centes. Cseterum si quis bovem aberrantem, vel equos in 
*' solitudine relictos abduxerit, non est abigeus sed fur potius." 
The stealing of a single horse or ox might make a man an 
abigeus, but it seems that ^ the crime could not be committed 
on less than four pigs or ten sheep. They need not how- 
ever be all taken together. In such a state of the law one 
would expect thefts of three pigs or eight sheep to become 
abnormally common. By a law of Hadrian this offence was 
punished by the mines, or. if the thieves were armed, 
capitally. 

Prevarication. — ^Prevarication was a crime connected 
with* the administration of justice. 

"Prevaricator," says Ulpian, "est quasi varicator" (a man 
with bandy legs) "qui diversam partem adjuvat prodit^ 
" caus^ sua." The name was strictly applied to accusers who 
favoured the accused in a " publicum judicium." An advo- 
cate who betrayed his client was more properly called 
"proditor," a traitor. The prevaricator was punished as a 
false accuser. 

Receivers. — The receivers of robbers were punished like 
robbers. ^ ** Pessimum genus est receptatorum sine quibus 
*' nemo latere diu potest. Et praecipitur ut perinde puniantur 
" atque latrones. In pari causa habendi sunt qui quum appre- 
" hendore latrones possent pecunia accepta vel subreptorum 
"parte demiserunt." Indulgence, though not complete im- 
punity, was extended to those who were connected with tlie 
robber. "Eos tamen apud quos adfinis vel cognatus latro 

» Dig. xlvii. 14, 1, 1. 2 /J. 14^ 3. » yi. 15^ 1. 

' Paulus. lb. 16, 1. 



28 

Chap. II. 



THEFT AS A CRIME — STELLIONATUS. 

" conservatus est, neque absolvendos neque severe admodum 
"puniendos." 

Aggravated Theft. — ^ Thieves who stole under certain 
aggravated circumstances were subject to " extraordinaria 
" crimina." The aggravations were as follows : — 

(a) Balnearii, those who stole the clothes of bathers in the 
public baths. 

(b) Those who stole by night (there is no definition of 
night) or who defended themselves by arms. 

(c) Housebreakers (effractores). 

{d) "Expilatores qui sunt atrociores fures.'* It is not 
certain what was their special characteristic. Some say 
(fantastically), *' expilatores dici quod ne pilum quidem 
"relinquunt in corpore spoliatorum." Others described them 
as, " eos qui noctu viatoribus pallia et vestes diripiunt." 

{e) Saccularii, thieves who stole by tricks such as pre- 
tended magic. 

(/) Directarii. "Hi qui in aliena coenacula se dirigunt 
"furandi animo." 

All these were punished at the discretion of the judge, the 
severest punishment being flogging and the mines. 

Crimen Expilat>e H^reditatis. — ^ A. stranger 'who 
plundered the property of a deceased person was liable to 
be proceeded against as upon an ''extraordinarium crimen." 

Stellionatus. — Stellionatus is defined by ^Pothier as 
" omnis atrox dolus qui proprio nomine caret. " It is strangely 
said to be derived from '' Stellio," a spotted lizard, of which 
Pliny strangely observes, " Quo nullum animal fraudulentius 
"invidere homini tradunt." The difficulty of giving an ade- 
quate definition of fraud has been felt at all times. One 
mode of avoiding the difficulty is the invention of a con- 
veniently vague term of abuse like " stellionatus '* or " dolus." 
Another is the plan of annexing the character of a crime to 
the combination of two things neither of which is criminal, 
as in our own conspiracy to defraud. The difficulty exists 
in the very nature of human conduct. The following are 
instances of "Stellionatus": — *"Si quis merces supposuerit, 

1 Dig. xlvii. 17 and 18. ^ xb. 19. 

3 iv, 384. ^ Dig. xlvii. 20, 3, 1. 



UNLAWFUL ASSOCIATIONS — PRIVATA DELICTA. 29 

" vel obligatas averterit, vel si corruperit " — delivering goods Chap. II. 
different from those sold, or removing goods pledged, or in- 
juring them. By our. own law, two persons who conspired 
together for such a purpose would be guilty of an indictable 
conspiracy, but if one person did it alone he would commit 
at most an actionable fraud. 

De Termino Moto. — ^Moving or defacing landmarks was 
a criminal offence, partly on account of the great importance 
attached to them by the agrarian laws. 

Unlawful Associations. — ^No associations whatever 
(with some slight exceptions) were allowed to exist unless 
they were specially authorised either by the Emperor or by 
the Senate. Those who formed such associations were 
punished in the same way as persons " adjudged to have 
** occupied in arms public places or temples." Meetings for 
religious purposes were permitted in the case of religions 
which were authorised by the State, but in no other cases. 
This was one of the principal laws under which Christianity 
was prohibited. 

III. PRIVATA DELICTA. 

Many of the commonest and, in practice, most important 
of the offences against person and property which fall within 
what I have described as the Criminal Law were treated by 
the Roman lawyers as mere private wrongs, " privata delicta," 
though as time went on they seem to have come to be re- 
garded as crimes. Two passages of Ulpian set this in a clear 
light. 2 He says in his 2nd book (De Officio Proconsulis) : 
" Si quis actionem quae ex maleficiis oritur velit exsequi 
" si quidem pecuniariter agere velit ad jus ordinarium re- 
" mittendus erit : nee cogendus erit in crimen subscribere. 
" Enimvero si extra ordinem ejus rei pcenam excrceri velit, 
**tunc subscribere eum in crimen oportebit." *In another 
passage (in his 38th book on the Edict) Ulpian says that in 
liis time tliefts were generally prosecuted as crimes : " Memi- 
" nisse oportebit nunc furti plerumque criminaliter agi, et 
" eum qui agit in crimen subscribere : non quasi publicum 

^ Dig. xlvii. tit. 21. » Ih. tit. 22, 1, 1. 

» Dig. xlvii. 1,3. < lb. 2, 92. 



30 THEFT AS A WRONG. 

Chap. II. <' ^[i judicium sed quia visum est temeritatem agentium etiam 
" extiaordinaria animadversione coercendam. Non ideo 
" tamen mimis si qui velit poterit civiliter agere." One 
obvious cause for this would be that thefts would usually 
be committed by persons unable to pay damages. 

The " privata delicta " mentioned in the Digest are as fol- 
lows : — 

FuRTUM. — Theft is thus defined by Paulus :— ^" Furtum 
" est contrectatio rei fraudulosa, lucri faciendi gratia, vel 
*' ipsius rei, vel etiam usus ejus possessionisve, quod lege 
" naturali prohibitum est admittere." The definition omits 
the element which from other passages of the Digest it 
obviously ought to have contained of *' invito domino." The 
manner in which the subject of theft is treated in the Digest 
has considerable resemblance to the manner in which it is 
dealt with in our own law, though there are also many differ- 
ences between them. Nearly every question which has pre- 
sented itself to English judges and courts at different times 
appears also to have presented itself to the Roman lawyers. 
A comparison between them will not be without interest. 

2 By the Roman law the offence of theft could be committed 
on anything which either was at the time or could be made 
movable. The Sabinians at one time held that land and 
buildings fraudulently sold were stolen, but the Proculeians 
were of the opposite opinion, and their view prevailed. It 
was always admitted that theft could be committed on 
things forming part of or growing from the soil, such as trees, 
stones, sand, and fruits. The Roman lawyers knew nothing 
apparently of the strange rules of the common law as to the 
things which are not the subject of larceny. Perhaps these 
rules were made to evade the severity of the common law 
punishment of theft. The most objectionable of all the 
common law rules (that by which things in action, as e.g. 
notes and bills, were not capable of being stolen) ^ was diame- 
trically opposed to the Roman law. " Qui tabulas aut 
" cautiones amovit, furti tenetur non tantum pretii ipsarum 

^ Dig. xlvii. 2, 1, 3. In the same passage the word is derived from 
*' furvo, id est nigro . . . quod clam et obscuro fiat, et plerumque nocte." 
Other fantastic derivations are given. 

2 Pothier, iv. 327. ^ Dig. xlvii. 2, 27. 



THEFT AS A WRONG. 31 

" tabularum, verum ejus quod interfuit, quod ad sestimationem Chap. II. 
" refertur ejus summse quae in his tabulis continetur." This 
resembles 24 & 25 Vic. c. 96, s. 27, by which a person who 
steals a valuable security is punishable as if he had stolen 
a chattel of the like value. 

As to the nature of the crime itself the Roman law was in 
one important particular far more severe than the common 
law. Theft as defined by the common law includes an intent 
to deprive the owner permanently of the stolen goods. The 
Roman law applied also to an intent to steal its use or posses- 
sion. Thus: ^"Si pignore creditor utatur furti tenetur," 
^''fullo et sarcinator" (a tailor), " qui polienda vel sarcienda 
" vestimenta accepit si forte his utatur, ex contrectatione 
" eorum furtum fecisse videtur quia non in eam causam ab 
" eo videntur accepta." ^"Qui jumenta sibi commodata 
" longuis duxerit alienave re invito domino usus sit furtum 
" facit." Perhaps, as the severity of the common law 
led to the various subtleties by which its operation was so 
much restricted, the principle that theft was in common cases 
only a civil injury may have led the Roman lawyers to extend 
the definition of it. The " contrectatio " of the Roman lawyers 
was somewhat wider than the "taking" which enters into 
the English definition of larceny. According to English law, 
if the first taking is lawful no subsequent unlawful dealing 
with the thing taken amounts to theft, special exceptions 
excepted. This does not seem to have occurred to the Roman 
lawyers, though they also regarded an actual touching of the 
stolen goods as essential to theft {* "Hoc jure utimur ut furtum 
" sine contrectatione non fiat," says Ulpian), but if there was 
such a touching it was immaterial whether it took place be- 
fore or after the offender got possession of the thing stolen. 
^ Thus, barely to deny the receipt of a thing intrusted to one 
was not theft. To conceal it after receiving it with intent 
to convert it to one's own use (intercipiendi causa) was theft. 
So, ®"Qui vcndit rem alieuam sciens, ita demum furtum 
" committit si eam contrectaverit." 

' Dig. xlvii. 2, 54. « lb. 2, 82. 

3 Ih. 2, 40, and see Pothier, iv. 329. * Dig. xlvil 2, 62, 19. 

^ lb. 2, 12. « TWa is Pothier's Inference ; see iv. 821. 



32 THEFT AS A WRONG. 

Chap. II. This view of the subject would avoid the distinction 
between theft and some of the forms of fraudulent breach of 
trust which went unpunished at common law. It would take 
away one of the impediments by which English lawyers were 
prevented from treating embezzlement as theft. This doctrine 
also leads, by a shorter and plainer route, to the conclusion 
at which the Court for Crown Cases Reserved lately arrived 
in the case of ^R. v. Middleton. It was decided in that 
case that if A gives B a sovereign instead of a shilling, and 
B knowingly accepts and keeps the sovereign, B is guilty 
of theft. The case presented great difficulties, as may be 
seen by the judgment, but by the Roman lawyers it was 
very naturally decided : ^ '' Si rem meam quasi tuam tibi 
*' tradidero scienti meam esse, magis est " (it is the better 
opinion) "furtum te facere si lucrandi animo id feceris." 
The difficulty with the Roman lawyers in such a case 
was not as to the " contrectatio," but as to the "invito 
domino." 

It does not appear from the Digest that the Roman lawyers 
found as much difficulty as our own in determining on the 
precise moment at which theft is completed. Probably this 
arises from the different view taken of theft in the two systems- 
In a system which when it was formed regarded theft as a 
capital crime, it was obviously necessary to distinguish with 
perfect accuracy the moment at which the crime began. In 
a system in which theft was regarded as a civil injury this 
was immaterial, because no one would sue another for a mere 
formal theft. Another application of the same principle is, 
perhaps, to be found in the circumstance that one highly 
technical branch of the Roman law on the subject is not 
represented at all in English law. The Digest contains many 
texts turning on the question how much of a given article 
was stolen by a given act. ^A man who cut off part of a 
piece of plate (qui lancem rasit), was considered as having 
stolen the whole plate. It was a moot point whether a man 
who stole a bushel of corn from a heap or a cargo, stole the 
whole heap or cargo or only the bushel. This is one of the 

1 L. R. 2 C. C. R. 38. - Dig. xlvii. 2, 44, 1. 

'^ lb. 22, 2. 



ROMAN AND ENGLISH LAW OF THEFT. 2>3 

points which ^Gibbon notices as illustrating the influence of Chap. II. 
the Stoic philosophy on the Roman law. May not the ques- 
tion of the measure of damages have been connected with 
it ? The result of an "actio furti " was double or quadruple 
damages according as the theft was ''nee manifestum" or 
" manifestum." The amount due could obviously not be ascer- 
tained unless the value of the stolen goods was known, and 
that again must depend on the question as to how much was 
stolen. A passage of Ulpian on this subject deserves to be 
quoted as a good instance of that mode of argument by 
illustration and analogy which from the nature of the case 
must always be a favourite with lawyers. ^ '' Si de navi 
" onerata furto quis sextarium frumenti tulerit utrum totius 
" oneris, an vero sextarii tantum furtum fecerit ? Facilius 
*' hoc quseritur in horreo pleno. Et durum est dicere totius 
" furtum fieri. Et quid si cisterna vini sit ? Quid dicet ? 
" Aut aquae cisterna ? Quid deinde si [de] nave vinaria ut 
"sunt multae, in quas vinum effunditur? Quid dicemus 
" de eo qui vinum hausit, an totius oneris fur sit ? Et 
" magis est et ut hie non totius dicamus." 

The definition of theft according to Roman as well as 
according to English law included a mental element. By 
English law the taking in order to be felonious must be with 
intent to deprive another of his property permanently, wrong- 
fully, and without claim of right. By Roman law the 
" contrectatio " must be "fraudulosa et lucri faciendi gratia." 
Of course a person who takes what does not belong to him, 
intending to deprive the owner of it, acts primd facie frau- 
dulently. The cases in which such a taking is innocent 
must under any system be exceptional. The exceptions in 
Roman law were much the same as they are in English law. 
By English law a claim of right excludes a felonious intent. 
Thus in Roman law, ^"recte dictum est quiputavit se domini 
" voluntate rem attingere non esse furem." * ** Qui re sibi 
" commodata, vel apud se deposita, usus est aliter atque 
" accepit, si existimavit se non invito domino id facere furti 
" non tenetur," ^ " Si quis ex bonis ejus quern putabat 

^ Oiblmn, cli. xliv. 2 ^jg ^i^ii 2, 21, n. » Jh. 2, 16, 7. 

' fO. 2, rn, " Jb. 2, 83. 

vol.. L 1) 



34 ROMAN AND ENGLISH LAW OF THEFT. 

Chap. IL «' mortuum qui vivus erat, pro herede res apprehenderit, eura 
" furtum non facere." 

The principle in all these and other cases is the same ; 
there is no theft where there is a claim of right. 

The rule of the Roman law that misappropriation must be 
"lucri faciendi causa" in order that it might amount to theft 
has been on several occasions rejected expressly from the 
English definition of theft. It is, indeed, obviously inex- 
pedient and hardly capable of being applied. The Digest 
does not supply many illustrations of it, and the texts which 
bear upon it are not quite consistent. ^ " Verum est," says 
Ulpian, ''si meretricem alienam ancillam rapuit quis vel 
" celavit furtum non esse ; nee enim factum qua3ritur sed 
*' causa faciendi, causa autem faciendi libido fuit non furtum." 
Paulus, however, says, ^ " Qui ancillam non meretricem libi- 
" dinis causa surripuit furti actione tenebitur." An attempt 
has been made to reconcile these texts, but they appear to 
me clearly inconsistent. Possibly the "lucri faciendi causa" 
may have been inserted in the definition mainly with the 
view of drawing a line between mischief and theft. 

The Roman law at all events, regarded the question 
whether the thief or some one else was to profit by the 
offence as a matter of indifference. ^ " Si quis de manu 
" alicujus nummos aureos vel argenteas vel aliam rem ex- 
" cusserit, ita furti tenetur si ideo fecit ut alius tolleret 
*' isque sustulerit." 

The doctrine that theft must be ''invito domino," against the 
will of the owner of the property stolen, is common to Roman 
and English law, though the two systems apply it somewhat 
differently. According to the law of England it is theft to 
take goods with the owner's consent if the consent is obtained 
by fraud, and if the owner intends to part with the possession 
only; but it is not theft to take goods with the owner's 
consent if he is persuaded by fraud to part not only with the 
possession but with the property. 

By Roman law the line between theft and obtaining goods 
by false pretences turned not upon the question whether the 

1 Dig. xlvii. 2, 39. 2 jj, 2, 82, 2. ^ ji^ 2, 52, 14. 



I 



f 



ROMAN AND ENGLISH LAW OF THEFT. 35 

owner consented to part with the property or with the pos- Chap. IL 

session only, but upon the question as to the means by which 

he was deceived. If a man deceived another by personation, 

or by means regarded as equivalent to it, and so obtained his 

property, the offence was theft. ^"Falsus creditor," says 

Uipian, " hoc est is qui se simulat creditorem, si quid 

" acceperit furtum facit, nee nummi ejus hunt." He also says, 

- " Cum Titio honesto viro pecuniam credere vellem, subjecisti 

" mihi alium Titium egenum, quasi ille esset locuples, et num- 

" mos acceptos cum eo divisisti, furti tenearis quasi ope tua 

'* consilioque furtum factum sit, sed et Titius furti tenebitur." 

On the contrary, ^ '' Si quis nihil in persona sua mentitus est, 

" sed verbis fraudem adhibuit, fallax est magis quam furtum 

" facit, utputa si dixit se locupletem, si in mercem se collo  

" caturum quod accepit, si fideiussores idoneos daturum, vel 

" pecuniam confestim se soluturum." It must be observed 

that none of these cases, except perhaps the first, quite 

comes up to a false pretence of an existing fact. Perhaps 

if the case of a complete deception as to some existing fact 

other than that of the identity of a person had presented 

itself, the Roman lawyers would have held it to be theft. 

If so, their law and ours would be nearly coextensive, 

though they would not make the distinction which is 

made by us between theft and false pretences. The case of 

obtaining possession only by fraud and then converting the 

property (as where a man gets leave to mount a horse to 

try him and rides away) would present no difficulty to a 

Roman lawyer, as the riding the horse away would be clearly 

" fraudulosa contrectatio," though the mounting was not 

^' invito domino." 

It must be observed that the words "invito domino " were 
construed so strictly by some Roman lawyers, that the question 
was raised at all events, Whether, if a man gave up his pro- 
p<irty to a robber upon threats, the property was stolen? 
I^abeo says, '* " Si quis cum sciret quid sibi surripi non pro- 
" hibuit non potest furti agere. Paulas imo contra. Nam si 



' Dig. xlvii. 2, 43, = Ih. 2, fi2, 21. 

' lb. 2, 43, 3. * Ih. 2, 91. 



3 6 ROMAN AND ENGLISH LAW OF THEFT. 

Chap, il " quis scit sibi rapi, et quia non potest prohibere quievit furti 
" agere potest." 

The Roman and the English law on the subject of the 
possession of stolen property is not dissimilar, though many 
of the fictions which have been introduced into English law 
in order to evade the consequences of the rule, that 
a wrongful taking is always necessary in larceny, are dispensed 
with in Roman law by the more reasonable doctrine of 
" contrectatio." 

In order that a thing might be stolen it was necessary by 
Roman law that it should be in the possession of some person, 
or that some one should intend to possess it. Things which 
had been abandoned by the owner, or which had never been 
reduced into possession, could not be stolen. ^ ''Quodsi dominus 
*'' quid dereiiquit furtum non fit ejus, etiamsi ego furandi 
" animum habuero. Nee enim furtum fit nisi sit cui fiat ? " 
" ^ Si apes ferse in arbore fundi tui apes fecerint, si quis eas 
" vel favum abstulerit eum non teneri tibi furti, quia non 
" fuerint tuse ; easque constat captarum terra mari coelo 
" numero esse." 

The Roman and the English law agree in some particulars 
as to the persons by whom theft can be committed. 

Married persons could not steal from each other, nor was a 
married person guilty of theft who helped some one else to 
steal from his wife or husband. 

^ Joint owners could by the Roman law steal from each 
other, "Si socius communis rei furtum fecerit (potest enim 
" communis rei furtum facere) indubitate dicendum est furti 
" actionem competere." This is the precise equivalent of 
Mr. Russell Gurney's Act, 31 & 32 Vic. c. 116, s. 1. 

The English rule of evidence as to recent possession was 
also recognised by the Romans. Thus in the Sixth Book of 
the .Code Tit. ii. v., it is said, " Civile est quod [a te] adver- 
" sarins tuus exigit : ut rei quod apud te fuisse fateris 
" exhibeas venditorem, nam a transeunte et ignoto te emisse 
*' dicere non convenit volenti evitare alienam bono viro sus- 
" picionem." " You ought to produce the person who you 
" say sold you what you own you had, for no one who has 
1 Dig. xlvii. 2, 43, 5. » jj^ 2, 26. ^ lb. 2, 4o. 



r 



THEFT FROM THE INHERITANCE. 37 

" any regard for his character for honesty -will say he bought Chap. II. 
" it from a man in the road whom he did not know." This 
statement is often made in English courts, but as a rule by 
those who can hardly expect "evitare alienam bono viro 
*' suspicionem." 

Besides the common action of theft there were several 
subordinate actions which provided for analogous wrongs. 
They were as follows : 

De Tigno Juncto. — 1 This was an action as old as the laws 
of the Twelve Tables providing a special remedy in the case 
of materials stolen and used up in erecting buildings, or 
scaffolds for vines. A distinction was made between this and 
other cases, " ne vel sedificia sub hoc prsetextu diruantur, vel 
" vinearum cultura turbetur." 

Si Qui Testamento Liber. — This was a special action 
to provide for the case of a slave whose master had left him 
his liberty, and who, in the interval between the testator's 
death and the heir's succession fraudulently disposed of 
anything" to which the heir would have a right when he 
succeeded to the inheritance. The necessity for such an 
action arose from the singular doctrines of the Roman law 
as to slavery and as to inheritance. During the interval 
after his master's death the slave was the property of the 
fictitious person, the inheritance itself. As soon as the 
heir succeeded the slave became free under the will. On 
attaining his freedom he was no longer punishable as a 
slave, and till he attained it he was not punishable as a 
free man. He could not therefore be punished in any way 
for what he did whilst he was a slave to the inheritance. The 
praetor's edict remedied this defect, ^^ Natura sequum est non 
" esse impunitum eum qui hac spe audacior factus est quia 
" neque ut servum se coerceri posse intelligit, spe imrainen- 
" tis libertatis, neque ut liberum damnari, quia hereditati 
** furtum fecit, hoc est dominan. Dominus autem dominave 
" non possunt haberi furti actionem cum servo suo cpiamvis 
" postea ad libertatem pervenerit." 

Tlic necessity which formerly existed for laying the pro- 
perty of the goods of a deceased person in the bishop of the 
' Dig. xlvii. 3, » //'. i, 1. 



3^ bailees' liability for servants. 

Chap. II. diocese, and now in the judge of the Court of Probate, in 
prosecutions for stealing such goods before administration was 
taken out, has a sort of vague similarity to this proceeding. 

FuRTi Adversus Nautas, Caupones, Stabulartos. — 
^This was an action which lay against ship-masters, inn- 
keepers, and stable-keepers, for thefts committed by per- 
sons in their employ. " The master ought to answer for 
" what is done by his sailors, whether they are free or slaves." 
This is right because he employs them at his own risk, but 
he is answerable only for injuries done by them on board his 
ship ; if they do injury elsewhere he is not answerable for it. 
If he says beforehand that each of the passengers is to look 
after his own property, and that he (the master) will not be 
answerable for loss, and if the passengers agree he is not 
answerable. The master might free himself from responsibility 
as regarded the acts of his slave by giving up the slave in 
satisfaction (noxae dedendo), but his responsibility for the 
fault of a free man employed by him was absolute. Ulpian 
speculates on the reason of this. ^ '' Cur ergo non exercitor 
" condemnetur qui servum tam malum in nave admisit ? Et 
" cur liberi hominis nomine tenetur in solidum, servi vero 
" non tenetur ? Nisi forte idcirco, quod liberum quidem 
" hominem adhibens, statuere debuit de eo qualis esset, in 
" servo vero suo ignoscendum sit ei quasi in domestico malo, 
" si noxse dedere paratus sit. Si autem alienum adhibuit 
" servum quasi in libero tenebitur." 

^ The title " Si familia furtum fecisse dicitur," throws 
further light on the responsibility of masters for the thefts 
and other offences of their slaves. The title goes into con- 
siderable detail, but it will be enough to say that masters 
were allowed as a matter of privilege to pay for damage done 
by their slaves, instead of being obliged to give them up by 
way of compensation, unless the injury done was done with 
the master's assent. 

Arborum Furtim C^sarum. — ^This was a special action 
for damage short of theft to growing trees. 

Vi BoNORUM Raptorum et de Turba et de Incen- 
Dio, RuiNA, Naufragio, Rate, Nave Expugnata. — ^ These 

A Dig. xlvii. 5. 2 /^. 5^ 5^ 3 /j, q^ 4 /§^ 7, 5 /&. 8 & 9. 



CIVIL REMEDIES FOR VIS PUBLIC A — INJURIA. 39 

titles relate to civil remedies for acts which amounted to the Chap. II. 
crime of '' vis publica " or " privata," and of arson (" incen- ~ 
dium"). Incidentally, however, several Senatus Consulta are 
mentioned which treat particular acts connected with wrecks 
and fires as crimes. Some of these are very like English 
Acts of Parliament. Thus : ^ " Senatus consulto cavetur eos 
" quorum fraude aut concilio naufragi suppressi per vim 
" fuissent ne navi vel iis periclitantibus opitulentur legis 
" Cornelise quae de sicariis lata est poenis afficiendos." Com- 
pare with this 24 & 25 Vic. c. 100, s. 17, which renders 
liable to penal servitude for life every one who '' prevents or 
" impedes any person being on board of, or having quitted 
" any ship or vessel in distress, wrecked, stranded, or cast on 
'' shore, in his endeavour to save his life, or prevents or im- 
*' pedes any person in his endeavour to save the life of any 
" person so situated." 

Injuria. — The 10th title of the 47th book of the Digest 
is headed '' De injuriis et libellis famosis." The expression 
" injuria " in Roman law was nearly as vague a word as the 
expression '' wrong " or " tort " in our own, for, in the wider 
sense, it included ^ '' omne quod non jure fit," and in the 
narrower " contumelia," or " damnum culpa datum." There 
are, however, four special heads of "injuria" referred to in 
the Digest, namely, injuries to the person, to dignity, to repu- 
tation, and to liberty. Injuries to the person consisted not 
only in blows, but in threatening gestures, and included the 
case of administering anything hurtful to the mind, ^"si quis 
" mentem alicujus medicamento aliove quo alienaverit." 

An injury to "dignity" was apparently confined to a single 
case: ^''Ad dignitatem cum comes matronai abducitur." 
According to Roman manners, matrons were always accom- 
panied in public by some person who acted the part, as we 
sliould say, of a chaperon. To cause such a person to 
desert his mistress was " injuria ad dignitatem pertinens." 
If the offender went a step further his act was " injuria ad 
infamiam pertinens," that is to say, if he paid attentions 
to any person the object of which was ^ " ut ex pudico 

' J)iK. xlvii. 9, 3, 8. = Jh. 10, 1. » Jk 10, 1, 2. 

* lb. 10, 15. ^ lb. 10, 10. 



40 INJURIA. 

Chap. II. impudicus fiat." The special example given is, " Si 
quis mulierem appellaverit," and the word "appellare" 
is defined thus : ^ " blanda oratione alterius pudicitiam 
*' adtentare." "Hoc," observes Ulpian, "non est con- 
" vicium facere sed adversus bonos mores attentare." The 
offence seems to have been rather more extensive than the 
solicitation of chastity, which was, and theoretically still is, 
an ecclesiastical offence in England. Mere following a 
woman about was "injuria." "Quum quis honestam 
" mulierem adsectatur. » . . Assectatur qui tacitus frequenter 
" sequitur." Such attentions, however, must be "contra 
" bonos mores." Ulpian is careful to explain that a man " non 
" statim in edictum incidit. Si quis colludendi gratia id facit." 

The law of libel and slander was in a very imperfectly 
developed state at the time when the Digest was compiled. 
The following texts show that defamation, whether written or 
verbal, was regarded as an instance of "injuria," and that 
the truth of a defamatory statement was a justification for 
it. 3 <' gi quis librum ad infamiam alicujus pertinentem scrip- 
" serit, composuerit, ediderit, dolove malo fecerit quo quid 
" eorum fieret, etiam si alterius nomine ediderit vel sine 
*' nomine, uti de ea re agere liceret." 

" Con vicium " was a form of " injuria." " Convicium " is said 
to exist in the " collatio vocum." "Cum enim in unum 
" complures voces conferuntur convicium appellatur quasi 
" convocium." 

In order, how^ever, to be a " convicium," the " vociferatio " 
must be " adversus bonos mores," and " ad infamiam vel in- 
" vidiam alicujus." Not only he who himself vociferated, but 
he who stirred up others to vociferation, committed the 
offence, and if the defamatory matter was uttered publicly 
" in coetu " it was "convicium," whether it was said by one 
person of by moi-e persons than one. Defamatory matter 
spoken in private, ^ " convicium non proprie dicitur, sed in- 
" famandi caUsa dictum." 

The commonest form of defamation at that time appears to 
have been by symbolical actions, ^ as by wearing mourning, or 

1 Dig. xlvii. 10, 15, 20. ^ j^^ lo, 15, ^2, 23. 3 Ih. 10, 15, 9. 

4 yj, 10, 15, 4. ^ lb. 10, 15, 11 6 7^,, 10, 15, 27. 



CRIMINAL PKOCEDURE. 4 1 

going about unshorn, or with loose hair, as a protest against Chap. II. 
the oppression of the person defamed. 

The question of justification is dealt with in these few very 
inadequate words of Paulus : ^'' Eum qui nocentem infamavit 
" non esse bonum sequum ob earn rem condemnari, peccata 
*' enim nocentium nota esse et oportere et expedire." 

" Injuria " might in some cases be committed by trespassers 
on property, as for instance by breaking into a dwelling- 
house, or entering upon land. ^"Divus Pius aucupibus ita 
"rescripsit: non est (rationi) consentaneum ut per aliena 
*' praedia invitis dominis aucupium faciatis." So it was 
" injuria " to make your neighbour's room smoke. ^ " Si 
" inferiorum dominus sedium superioris vicini fumigandi 
" causa fumum faceret," but as to this there was some doubt. 

IV. CRIMINAL PROCEDURE. 

It would be foreign to my purpose to try to describe the 
criminal procedure of the Romans under the Republic, or to 
specify the numerous changes which were made at different 
times in the constitution and powers of the various tribunals 
of a criminal jurisdiction. The only form in which the 
system can have influenced our own criminal law, is that 
which it assumed under the Empire. It is still possible to 
give a pretty full outline of the system which probably pre- 
vailed there when Britain was a Roman province. 

* In the days of Constantine the Empire was divided as 
follows :— 

1. There were four praetorian praefects, namely, the praefect 
of the East, who governed Eastern Africa, Syria, and Asia 
Minor ; the ptaefect of Illyricum, who governed the whole of 
the South-East of Europe ; the praefect of Italy, who governed 
Italy, the South-West of Germany, and Western Africa ; and the 
praefect of the Gauls, who governed Gaul, Spain, and Britain. 
Rome and Constantinople, with their respective territories, 
were excluded from these praifectures, and were under 
municipal prefects of their own. 

These prcefectures were divided into thirteen dioceses, 

' Dig. xlvii. 10, 18. '-• Pothicr, iv. 868. 

" Dig. xlvii. 10, 41. * Gibbon, ch. xvii. 



42 ORGANIZATION OF EMPIRE. 

Chap. II. namely, 1. The East; 2. Egypt; 3. Ariana ; 4. Pontica ; 
5. Thrace ; 6. Macedonia ; 7. Dacia ; 8. Pannonia ; 9. Italy ; 
10. Africa; 11. Gaul; 12. Spain; 13. Britain. Each of 
these was under a vicar or vice-pra^fect, except Egypt, the 
ruler of which was called the Augustal Prgefect, and the 
East, the praefect of which was called the Count of the East. 
The dioceses were divided into 116 provinces, of which 
3 w^ere governed by proconsuls, 37 by consulars, 5 by 
correctors, and 71 by presidents. They are commonly called 
by the name of prccses in the Digest. Each province was 
composed of a number of cities greater or less with their terri- 
toria. The cities were of different ranks, some being colonies 
and others municipia, but each had their own magistrates. 
Through the territoria were distributed stationarii milites or 
policemen, who were under military organization, the super- 
intendents being called centurions or centenarii. The 
stationarii were subject to a superior officer called princeps 
pads, or eirenarcha — a word which it is impossible not to 
translate by justice of the peace. This organization of the 
Roman Empire corresponds with curious exactness to the 
organization of the British Empire in India, and especially 
in Northern India. India would have constituted a fifth 
prsefecture, much larger than either of the others, or indeed 
than any two of them, but governed in much the same 
way. The Praetorian Praefect would answer precisely to the 
Governor-General, the Vicars to the Governors, Lieutenant- 
Governors, and Chief Commissioners of the different 
Indian provinces. The rulers of the Roman provinces would 
answer to the commissioners of divisions. The civitas with 
its territoriiim would correspond to a district. The officers of 
the civitas differed widely from the Indian magistrate of the 
district and his subordinates, as they were natives of their 
city, and permanent residents in it ; but the eirenarcha or 
2orinceps pads discharged some of the duties of the magistrate 
of the district, and the milites stationarii, with their decurions 
and centurions, answered precisely to the thannahdars, or 
officers in charge of police stations. 

There were two modes of prosecuting crimes, public 
prosecutions and private prosecutions. Of these the private 



PROSECUTIONS UNDER THE EMPIRE. 43 

prosecutions have left the strongest traces in history, as the Chap. II. 
great political cases which occur in the early history of 
Rome, and of some of which the speeches of Cicero are 
monuments, were for the most part prosecuted in this 
manner. Public prosecutions as carried on under the 
Empire were no doubt the ordinary course for the adminis- 
tration of justice, and as the trials which took place 
attracted comparatively little attention, and left no monu- 
ments behind them, the whole subject has fallen into 
oblivion. As, however, if any part of the Roman system 
influenced our own institutions it must have been this, I 
will consider it first. 

Public Prosecutions under the Empire. — ^When a 
crime was committed which disturbed the public peace, 
it was the duty of the milites stationarii to apprehend the 
suspected persons, and to carry them before the eirenarcha, 
whose duty closely corresponded to that of an English 
justice of the peace, as may be gathered from the following 
remarkable passage of Marcian. ^ ''Hadrian wrote to Julius 
'' Secundus, and there are rescripts to the same effect that 
''the ^letters of magistrates who send prisoners to the 
"president as if they were already convicted are not to be 
" taken as conclusive. A chapter of an order is still extant, 
" by which Antoninus Pius when President of Asia, enacted 
"in the form of an edict, that the eirenarchas, when they 
" apprehended robbers, should question them about their 
" accomplices and receivers, and send their examination 
"inclosed in a letter" (also called elocjium), "and sealed up 
"for the information of the President. Persons sent up 
" with an " elogium " are to have a full trial " (ex intcgro 
cmdiendi), "although they have been sent with a letter from 
" the eirenarcha, or even brought by him. So too, both Pius 
"and other princes ordered that even those who were 
" reported for punishment * are to be tried, not as if they 
" were convicted, but from the beginning if there is any one 

1 The chief authorities for this are Pothier's proface to the 47th book of the 
J)ir/rM, niid Oodcfroy's ParcUUlon to the Ninth Book of thfi Tluodosian Code. 
'■'" Dig. xlviii. .3, 6. 

" Thfy were called "elogium," "notoria," or "notaria." 
* "Qui requircndi annotati sunt." 



44 KOMAN PRELIMINARY PROCEDURE. 

Chap. II. ''to accuse them. Therefore, whoever tries them ought to 
" send for the eirenarcha and require him to prove the 
''contents of his report. If he has done it diligently and 
'' faithfully he must be ^ commended ; if he has acted hastily 
*'and 2 without careful inquiry, it must be officially noted that 
" the eirenarcha acted hastily, but if it appears that he ques- 
" tioned " (probably tortured) " the defendant maliciously, 
" or reported what was not said as if it had been said, the 
''eirenarcha, is to be punished for the sake of example, so as 
"to prevent other things of the same sort in future." 

This remarkable passage provides us with an outline of 
the procedure adopted in common cases of crime. The 
miles stationarius or his inferior officer arrests. The eiren- 
archa holds a preliminary investigation (probably with the 
aid of torture) and commits for trial (as we know from other 
texts referred to below) to the prison of the civitas, which 
may perhaps be described as the county town, of the terri- 
torium in which the offence was committed. He acts to 
some extent as a public prosecutor, as English justices did 
in the days of the Stuarts, and as Indian magistrates still 
do in many cases. The trial took place before the 
praeses, who, like Indian Commissioners of Divisions in some 
parts of India, and till lately throughout all Northern India, 
exercised the powers of a judge of assize, and made a circuit 
to the different civitates in order to dispose of the business. 
The praeses, as the passage under consideration shows, had 
before him the eirenarcha's report, and copies of the de- 
positions just as an English judge of assize has the depositions 
taken before the magistrate. The praeses seems to have 
exercised over the eirenarcha and his preliminary procedure 
a greater degree of discipline and superintendence than is 
exercised by any one over an English justice, or even over 
an Indian magistrate, subject though the latter is to an 
exceedingly strict system both of appeal and supervision. 

Private Prosecutions under the Empire. — Crimes 
might be prosecuted under the Empire as well as under 
the Republic by a private prosecutor. In such cases the 
procedure closely resembled that which was pursued in 

1 Qij, "confirmed." ' Non exqiiisitis argumentis. 






1 



ROMAN ACCUSATIONS. 45 

purely civil actions, indeed, the action for a jprivatum delictum Chap. II. 
— for instance, a prosecution for a common theft differed 
from other civil actions only as such actions differed from 
each other. 

With regard to accusations of public crimes by private ' 

persons, the system was as follows : — 

Any one might act as an accuser except women, minors, 

soldiers, persons convicted of crime, and some others. These 

excepted persons however, might prosecute in cases in which 

they were interested. '' Si suam injuriam exequantur mortemve 

propinquorum defendant ab accusatione non excluduntur." 

All persons ^ except the praeses of the province during his 
tenure of office, and ^ magistrates absent in good faith on 
public duties, were liable to accusation. 

Under the Empire the accusation was made at Rome before 
the pra^fect of the city, and in the provinces before the praeses. 
In each case the judge took cognizance of crimes committed 
within his district. 

^ The accuser cited the accused before the praeses, and 
obtained the leave of the praeses to prosecute. The parties 
appeared before the judge. The accuser took an oath that 
his accusation was not calumnious, and stated the nature of 
bis accusation. If the accused did not deny its truth he 
was held to have pleaded guilty. If he denied it his name 
was entered on a register of accused persons, and the 
accuser filed an indictment — libellus. The form was thus : 
* " Consul et dies. Apud ilium praetorem vel proconsulem 
" Lucius-Titius professus est se Maeviam lege Julia de Adul- 
"teriis ream deferre, quod dicat eam cum Gaio Leio in 
" civitate ilia, domo illius, mense illo, consulibus illis, adui- 
"terium commississe." It was we are told necessary to state 
the place, person, and month of the offence, but not the day 
or hour. Aggravations of the offence were to be stated in the 
libel, and it was to be signed by the accuser, who was liable 
to the penalty of retaliation if his accusation failed. If tliis 
provision was acted upon it must practically have put a stop to 
private accusations, ^ but there is some evidence that the jueiia 

1 Di^. xlviii. 2, 11. ^ Ih. 2, 12. ' PotUicr, iv. .^97. 

* Dig. xlviii. 2, H. » Coote's Rwinna in Britain, 307, 308. 



4^ ROMAN TRIALS. 

Chap. II. talionis was practically only a penalty which might be reduced 
by the judge in his discretion to a money fine. 

The indictment might apparently be amended if an ex- 
tension of time was allowed by the judge for that purpose. 

The accuser was also bound over to prosecute, and if he 
did not appear he was not only liable to be punished in 
the discretion of the judge, but had to pay all the defendant's 
costs, including his travelling expenses. 

A day was then fixed for the judicium, and under the 
Republic Judices were appointed, a proceeding which had 
some resemblance to the appointment of a jury. It is 
difficult to say how long this system lasted, or who the 
judices were, especially under the Empire. 

The Trial. — The court being constituted, a certain time 
was allowed for the production of witnesses and documents, 
the witnesses beinor liable to be both examined in chief and 
cross-examined. It is difficult to say whether each side was 
allowed to call witnesses to facts. Pothier's opinion, founded 
on a passage of ^Quintilian, is that both sides might call 
witnesses, but that the prosecutor only could compel their 
attendance. The following is the passage from Quintilian : — 

"Duo genera sunt testium, aut voluntariorum, aut eorum 
" quibus judex in publicis judiciis lege denuntiari solet, 
" quorum altero utraque pars utitur, alterum accusatoribus 
" tantum concessum est." 

That either party to a criminal prosecution should be 
debarred from calling witnesses is so repugnant to our con- 
ceptions of justice, that it seems at first difficult to imagine 
that such could ever have been the rule under any 
moderately civilized system. It will, however, be shown 
^hereafter that trial by jury in its original form dispensed 
with witnesses altogether ; that under the civil law as 
administered all over the Continent down to recent times 
the prosecutor only could call witnesses ; and that in 
England the prisoner's right to call witnesses upon equal 
terms with the Crown was not established till the reign of 
Queen Anne. 3 After the examination of the witnesses was 

1 Inst. V. 7. 2 gee pp. 349-53, ivfra. 

^ Mr. Trolloioe, in his interesting Life of Cicero, observes that the prisoner 



ROMAN TRIALS — TORTURE. 47 

complete, the parties or their counsel (patroni) made speeches, ^"^p. ii. 
of the character of which much may be learnt from Cicero's 
orations, and from Quintilian's Institutes, but of which nothing 
need be said here. ^ The accused was allowed to call witnesses 
to character {laudator es). Finally, the decision was given, 
at the time when judices were appointed, by the vote of the 
judices by ballot, afterwards probably, or in cases where there 
were no judices, by the praeses. 

If the accused was acquitted the accuser might be con- 
victed of calumny if the judge thought he had brought his 
accusation from improper motives. ^ '' Non utique qui non 
*'probat quod intendit protinus calumniari videtur. Nam 
'' ejus rei inquisitio arbitrio cognoscentis committitur qui reo 
*■' absoluto, de accusatoris incipit consilio quse^rere qua mente 
''ductus ad accusationem processit et si quidem justum 
" errorem reperirit absolvit eum ; si vero in evidenti calumnia 
\' eum deprehenderit legifcimam poenam ei irrogat." The 
original punishment for calumny was branding the offender 
with a K on the face. Constantino enacted that instead of 
the face the hands and calves of the legs should be branded. 
The calumniator was also subjected to retaliation. 

Torture. — The only further observation I have to make 
upon the Roman criminal procedure, relates to the use of 
torture. It formed an essential part of the procedure under 
the Empire, though the Digest contains passages which show 
that it was used with caution, and reserved in most cases for 
slaves. An edict of Augustus still remains which lays down 
a general principle on the subject: 3'<Quaestiones neque 
" semper in omni causa et persona desiderari debere arbitror. 
" Et quum capitalia et atrociora maleficia non aliter ex- 
" plorari et investigari possunt quam per servorum qua3stiones; 
" efficacissimas eas esse ad requirendam veritatem existimo 
" et habendas censeo." 

The commonest case for the application of torture was that 

was not allowed to call witnessos. He allows me to say that his o])inion, 
ff)rine(l after a careful .study of ('iccro's orations, is that, whatever the law upon 
the subject niay have been, there are no truces in the orations of any accused 
])orson haying actually done so. I have not myself studied them from this 
l)oint of view. 

' I'otliier, iv. 399. » Dig. xlviii. 10, 3, 1. =« lb. 18, 8. 



48 TORTURE OF SLAVES AND OTHERS. 

Chap. II. of slaves who were liable to be tortured when their owners 
were suspected of offences. ^ " Ad tormenta servorum ita 
" demum venire oportere cum suspectus est reus, et aliis 
" argumentis ita probationi admovetur ut sola confessio 
" servorum deesse videatur." The accused himself might 
however be tortured, and that repeatedly, if the evidence 
against him was strong, but not otherwise. 2'<j^eus eviden- 
" tioribus argumentis oppressus repeti in qusestionem potest, 
" maxime si in tormenta animum corpusque duraverit. In 
" ea causa in qua nullus reus argumentis urgebatur tormenta 
" non facile adhibenda sunt : sed instandum accusatori ut id 
" quod intendat comprobet atque convincat." ^The torturer 
was not to ask leading questions, " Qui quaestionem habiturus 
" est non debet specialiter interrogare an Lucius Titius liomi- 
" cidmm fecerit, sed generaliter quis id fecerit, alterum enim 
** magis suggerentis quam requirentis videtur." The evidence 
obtained by torture was to be received with caution, *'' Quses- 
" tioni fidem non semper nee tamen nunquam habendam : 
" constitutionibus declaratur. Etenim res est fragilis et 
" periculosa et quae veritatem fallat. Nam plerique patientia 
" sive duritia tormentorum ita tormenta contemnunt ut ex- 
" primi iis Veritas nullo modo possit : alii tanta sunt 
" impatientia ut quovis mentiri quam pati tormenta velint ; 
" ita fit ut etiam vario modo fateantur ut non tantum 
" se verum etiam alios comminentur." 

Such was the Roman law as to the definition of crimes, 
and the procedure for their punishment. It exercised greater 
or less influence on the corresponding part of the law of 
every nation in Europe, though in all it was far more deeply 
and widely modified by legislation than any other part of the 
Roman jurisprudence. Perhaps it was preserved with less 
alteration in Holland than elsewhere, as may be seen by 
reference to Grotius and Voet's commentary. It still retains 
a sort of vitality in the colonies conquered by England from 
the Dutch, though in Holland, as in other parts of the 
Continent of Europe, it has been superseded by more modern 
legislation. 

1 Dig. xlviii. 18, 1, 1. - lb. 18, 18, 1. ^ ji^ 13, 1, 21. 

•» lb. 18, 1, 23. 



INFI^UENCE OF KOMAN CRIMINAL LAW IN ENGLAND. 49 

How far the system described in the Digest was ever in Chap. ii. 
force in England is a problem which I suppose can never be 
solved. The German conquest took place in the fifth century, 
the Roman forces having been finally withdrawn in 409 
(Gibbon, ch. xxxi.). The Theodosian Code was compiled 
not long afterwards, and the Digest as we have it, between 
530 and 533. As, however, they were both founded on the 
existing law of the Roman Empire, and as there is no reason 
to suppose that Britain was treated differently from the other 
provinces, it is natural to suppose that the system described 
above obtained here as well as elsewhere. Whether any 
portion of it survived the German conquest, and so influenced 
the earlier and ultimately the existing English law is a 
question of purely antiquarian interest. In the laws made 
before the Conquest some expressions occur which have been 
taken from the Roman Law, but the important influence 
of Roman upon English law was exercised through the 
founders of the English common law long after the Norman 
conquest. Glanville and Bracton, 'but especially Bracton, are 
full of references to it, and indeed derived most of their 
definitions and principles directly from it, although it had 
little or no assignable influence on the modes of procedure. 
These were derived from other sources. 

It is observed with great truth by ^ Rossi that there is a close 
analogy between the manner in which Roman and English 
laws were developed. In each the system in its origin con- 
sisted of crude and vague definitions gradually manipulated 
into a sort of system by legislation, especially by judicial 
legislation. The English system has at the present day had 
a history of about 600 years, if we take Bracton as the 
earliest writer who can now be regarded as in any sense an 
authority. The interval between the Twelve Tables and the 
compilations of Justinian was about a thousand years ; but 
legislation was resorted to much more extensively, and at a 
much earlier date in the history of the Roman criminal law 
than in the history of our own. The various leges Julicc may 
bo not at all unfairly compared to the Consolidation Acts of 
1861, and they were passed about three centuries after the 

* Train du DroU Pinal, p. 49. 
vol, T. F, 



50 CHARACTER OF ROMAN CRIMINAL LAW. 

Chap. II. legislation contained in the Twelve Tables. I do not think 
that the Roman criminal law, as stated in the authorities 
from which the preceding account has been extracted, con- 
tains anything which can justify the loose popular notion 
that Eoman law is peculiarly complete and scientific. In 
the absence of the text of the laws themselves, it is difiicult 
to form an opinion on the subject ; but it would be idle to 
compare the heap of extracts collected in the Digest, and 
thrown together with no arrangement whatever, even with so 
clumsy a compilation as Bussell on Crimes. It is infinitely 
less copious. It does not go into anything like such full detail, 
and it is certainly not better arranged, though Russell on Grimes 
is arranged exceedingly ill. The notion of extracting from 
the works of the jurists a set of definite, well stated, and 
duly qualified principles, and arranging them in their natural 
order in a complete coherent system, does not appear to 
have presented itself to Tribonian and his assistants, any 
more than it has to the great mass of writers on English law* 
There is a close resemblance between the two systems, and a 
resemblance all the more curious and interesting because the 
direct effect of the earlier on the later system, though still 
traceable, was small, but the resemblance is to be traced at 
least as distinctly in the defects of the two systems as in 
their merits. 



EARLY ENGLISH CRIMINAL LAW. 5 I 



CHAPTER III. 

EARLY ENGLISH CRIMINAL LAW. 

It is a matter of great difficulty, indeed I think it would Chap. III. 
be impossible, to give a full and systematic account of 
the criminal law which prevailed in England in early 
times. The original authorities are scanty, and all presume 
the existence of the very knowledge of which we are in 
search. Both the laws of the early kings and our own 
statute book presuppose knowledge of an unwritten law. Our 
own unwritten law can still be ascertained, but such parts 
of the earlier law as were not written have absolutely 
disappeared. The collection of Ancient Laws and InstihUes 
of England, published by Mr. Thorpe, under the direction of 
the Record Commissioners, contains in all forty-seven sets of 
laws, or partly ecclesiastical, partly secular statutes, bearing 
the names of ^ fourteen different rulers. Of these the Leges 
Ilenrici Frimi, though the least authentic, are, perhaps, the 
most instructive. They are obviously a compilation made in 
the time of Henry I., by some private person, of the laws then 
in force, or supposed to be in force, among the English. They 
form a sort of digest, collecting into one body many things to 
be found in the earlier enactments, as well as a good deal of 
matter which is not to be found there, but is, at all events in 
many places, extracted from the Civil and Canon law. It also 
( ontains several express references to the Salic Law, and the 

' 1. MthoMrht. 2. Alothhare and Eadric. 3. Wihtrffid. 4. Alfred, fi. 
Tna. 6. Edward (the Elder). 7. Etlielstan. 8. Edmund. 9. Edgar. 
10. Ethelred. 11. Cnut. 12. Edwnrd the Confessor. 13. William the 
' oiqiieror. 14. Leges llenriri Primi. The refprenr.e« to Thorpe nro to the 
."^vo edition in two volumes. 



52 LEGES HENRICI PRIMI. 

Chap. III. law of the Ripuarian Franks. It is a slovenly composition, 
full of inconsistencies, repetitions, and distinctions un- 
necessary in themselves, and forgotten as soon as they are 
made. With all its defects, however, the work probably 
gives us better nieans than any other now extant of forming 
an opinion as to the nature of law amongst the early 
English. ^ The general impression which it makes is that 
they had an abundance of customs and laws sufficiently 
well ascertained for practical purposes, but that when any- 
thing in the nature of a legal principle or definition was 
required they were quite at the mercy of any one whom they 
respected as a learned man, and who was prepared to lay 
down any such principle or definition upon or without any 
authority whatever. Roman law must have been the source 
from which such definitions and principles were drawn, 
because no other was then in existence. At what time, by 
whom, in what degree these principles and definitions were 
first introduced, how far locally they extended, how far they 
varied, are questions which will probably never be answered, 
and are of no importance.^ 

The laws of the different kings closely resemble each 
other in their general outline. Indeed, they are, to a great 
extent, re-enactments of each other, with additions and 

1 The laws of Edward the Confessor were collected, as their title states, in 
the fourth year after the Conquest, when "William " Fecit summoniri per 
" universos patriae comitatus Anglos nobiles sapientes, et in lege sua 
" eruditos ut eorum consuetudines ab ipsis audiret." 

2 There is a work called the Mirror, which has been regarded as throwing 
light on the pi inciples and definitions of the early English laws, and as showing 
that they were of Koman origin. It certainly is a curious book, but I cannot 
myself attach much importance to it. It was written not earlier than 13 
Edw. 1 (a. D. 1285), as it refers to a statute passed in that year, but it contains 
all sorts of assertions about Alfred, and in particular a specification of forty 
judges, whom he is said to have hanged as murderers, for putting different 
people to death unjustly. It also contains a number of what profess to be 
indictments, or rather appeals, as the author calls them. It is difficult, 
to me at least, to understand how the assertions of a writer of the end of 
the thirteenth century, who gives no authorities, can be regarded as of any 
weight about the details of transactions said to have occurred 400 years before, 
and which are noticed by no one else. Alfred's laws do not even mention 
judges, nor do they in any respect confirm the strange assertions of the 
Mirror. My conjecture would be that the part of the Mirror which relates 
to the laws of Alfred, &c., is simply an invention. One of the author's objects 
was to protest against judicial corruption and other abuses of his time, and 
his assertion that Alfred executed forty specified judges for specified offences 
was probably made as a suggestion as to what ought to be. See some 
remarks on this book by Sir F. Palgrave, ii., cxiii. 



EARLY ENGLISH CRIMINAL LAW. 53 

variations; and most of them contain a greater or less ad- Chap. IIL 
mixture of moral and religious exhortation. The laws of 
Alfred, for instance, begin with the Ten Commandments^ 
an adaptation of considerable parts of Exodus, extracts 
from the Acts, and a historical statement as to the diffusion 
of Christianity. 

To extract anything complete or systematic from such 
materials is obviously impossible. There is, indeed, an 
abundant supply of modern literature upon the subject, but 
it is impossible to read it without perceiving that the results 
arrived at are, to a great extent, conjectural, and that the 
most learned and acute writers have frequently given to the 
public rather proofs of their own learning, industry, and in- 
genuity, than definite information. Moreover, questions 
about the early English, which bear upon the origin of the 
popular parts of our government, parliament, and trial by 
jury, have been debated with no small share of the heat 
which attaches to all political controversy. 

I. EARLY ENGLISH CRIMES. 

Pursuing the division of the subject already adopted, I will 
first describe, as well as I can, the early English doctrines 
on the subject of crimes, and next the system of criminal 
procedure then in force. 

So far as I have been able to discover there are hardly 
any definitions of crimes in the early laws, but they 
contain provisions of one sort or another about a large 
proportion of the offences which would be defined in a 
modern criminal code. 

The following are the principal offences against the Govern- 
ment referred to in the laws. ^"Plotting against the 
*' king's life, of himself, or by harbouring of exiles or of 
*' his men." ^upj^^^j^jg against a lord." ^Fighting in a 
" church, or in the king's house." * " Breaking the king's 

1 Alfred 4 ; Thorpe, i. 63. « EthelBtan 4 ; Thnrpo, i. 203. 

» Ethelrod, vii. 9 ; Thori)o, i. 331 ; Cnut, 60 ; Thorpts i. 401). 
* This is nuntionod in n«;arly all the laws, e.g. £thelred, vii. 11 ; Thorpe, 
i. 331 ; Cnut, 12 ; Thorpe, i. 383. 



54 ANGLO-SAXON CRIMES. 

Chap.III. "peace {frith, or grith) or protection (mund-hryce)." ^In 
several of the laws there is mention of overseimesse or 
oferhynes. This seems to have been a general expres- 
sion, including whatever we should call contempt, and 
also disobedience to lawful authority, especially by public 
officers. 2 Thus, " Qui justum judicium ordinabiliter habi- 
*' turn et legitime redditum improbaverit overseunesse Ju- 
" dicetur L. sol. in Westsexa, si erga comitem XL, sol., &c." 
" ^ Si quis a justicia regis implacitatus ad consilium exierit, 
" et ad inculpacionem non respondent XX. maree vel over- 
" seunesse regis culpa sit." 

Of offences against public justice * perjury is mentioned on 
several occasions. Offences against religion and morals are 
dealt with at length in the ecclesiastical ordinances, but they 
are also mentioned frequently in the secular ordinances. 
Heathenism is thus defined : ^ " Heathenism is that men wor- 
" ship idols, that is, they worship heathen gods and the sun 
" or the moon, fire or rivers, water-wells or stones, or forest 
" trees of any kind." Many of the laws contain provisions 
as to different forms of unchastity, adultery, incest and even 
simple fornication. ^By a law of Cnut's a woman was to 
"forfeit both nose and ears" for adultery, ^Procuring abor- 
tion seems to have been regarded as an ecclesiastical offence 
only. ^ Some provisions occur as to witchcraft, and "making 
" offerings to devils." The only offence at all resembling a 
public nuisance which I have noticed is Stredbreche, which is 
thus defined in the Leges Henrici Primi ; ^ " Stredbreche est si 
" quis viam frangat concludendo, vel avertendo, vel fodiendo." 
Offences against the persons of individuals are most 
minutely provided for by some of the laws, which contain 
provisions as to homicide, different kinds of wounds, rape, 
and indecent assaults. The definitions of these offences 
are assumed, but there are a few passages which to 
some extent recognize a distinction analogous to ours 

1 Thorpe, i. 537 ; Hen. 1, xxxiv. 3 ; Thorpe, i. 551, 593 ; Heu. 1, liii. 1 ; 
Ixxxvii. 5. 

- Thorpe, i. 537. 3 Thorpe, i. 538 ; Hen. 1, xlviii. 1. 

"* Edw. 3 ; Eth. v. 25 ; vi. 28, &c. Hen. 1, xi. 6 ; Thorpe, i. 521. 
^ Cnut, 5 ; Thorpe, i. 379, and see Edward and Guthrum 2 ; Thorpe, i. 169, 
'' Cnut, 54 ; Thorpe, i. 407. ^ Hen. 1, Ixx. 16 ; Thorpe, i. 574. 

8 Wiht. 12, 13, &c. ; Thorpe, i. 41. •' Ixxx. 5 ; orpe, i. 586. 



OFFENCES AGAINST THE PERSON. 55 

between murder and killing by negligence. The dis- Chap. I 

tinction between murder and manslaughter, as we now 

understand it, is, I think, much more modern. The laws 

of Alfred embody the provisions of Exodus xxi. 12 — 15. 

They also provide for cases of accident or negligence. ^ " If 

'' at their common work one man slay another unwilfully, 

'' let the tree be given to the kindred, and let them have 

" it off the land within xxx, days, or let him take 

'' possession of it that owns the wood " — a provision which 

assumes that the commonest case of accidental death 

was the felling of timber. ^ " If a man have a spear over 

his shoulder and any man stake himself upon it that he '' 

(the man with the spear) "pay the were" (compensation to 

the party) " without the wite " (the fine to the king). ^ So in 

the laws of Henry I. it is laid down as a general principle that 

"qui inscienter peccat scienter emendet," for which reason, 

if any one accidentally kills another in any game or exercise, 

or frightens a person so that he runs away and faUs and so 

is killed, the person causing the death is to pay the were. 

Some obvious cases of justifiable homicide are also mentioned. 

One is remarkable because it affords a clear instance of the 

process by which Roman law found its way in particular cases 

into English law. * " Pugnare potest homo contra eum quern 

" cum desponsata sibi uxore post secundam et tertiam pro- 

" hibitionem clausis hostiis et sub una coopertura inveniet." 

^ This is obviously adopted from the provision in the novel 

cxvii. already noticed. A vague attempt is made in the Leges 

Henrici Primi to define homicide, but the writer arrives only 

at a tolerable classification of the degrees of guilt involved. 

The passage is a good specimen of the work in which it 

occurs : ^ " Homicidium fit multis modis, multaque distancia 

" in eo est in caus^ et in personis. Aliquando autem fit per 

" cupiditatem, vel contencionem temporalium, fit etiam per 

" ebrietatem, fit per jussionem alicujus, fit etiam pro defeu- 

' Alf. 13 ; Thorpe, i. 71. 

- Alf. 36 ; Thorpe, i. 85. I omit some obscure expressions as to the shape of 
the :ipear. The same law is given more fully, but in several parts indistinctly, 
in Leg. H. 1, c. Ixxxviii. ; Tlior^x', i. fi95. 

« Hen. 1, Ixxxviii. 6 ; Thorpe, i. 595. ^ Hen. 1, Ixxxii. 8 ; Thorpe, i. B91. 

» Sec an/r, p. 15. « Hen. 1, Ixxii. 1 ; Thorpe L 577. 



56 HOMICIDE — THEFT. 

Chap. TIT. " sione et justicia, de quibus ita meminit beatus Augustinus, 
" ' Si liomicidium est hominem occidere, potest aliquando 
" ' accidere sine peccato ; nam miles hostem, et judex 
" ' nocentem, et cui forte m vita vel imprudenti telum manu 
'' ' fugit, non mihi videntur peccare cum bominem occidunt.' 
" ^ . . . ' Fit etiam homicidium casu consilio.' " 

The crime of inflicting bodily harm is described in some 
of the laws with almost surgical minuteness. Of the 
seventy-seven laws of Alfred, no less than thirty-four 
define the different injuries which may be inflicted by un- 
lawful violence. Here is one specimen : ^ " If the great toe 
*' be struck off" let twenty shillings be paid him as hot If 
" it be the second toe, fifteen shillings. If the middle-most 
*' toe, nine shillings. If the fourth toe, six shillings. If the 
" little toe be struck off let five shillings be paid him." 

Of offences against property theft is the one most com- 
monly referred to. I have found no definition of it in any 
. . of the laws, though I think it may be said to be the subject 

to which they refer most frequently. Some aggravated 
forms of the off'ence are, however, distinguished. Robbery, 
roheria, is frequently mentioned ; but I think no definition 
of it is given. Forestel and hamsocna are defined : ^ " Forestel 
" est si quis ex transverso incurrat vel in via expectet et 
" assalliat inimicum suum." It is distinguished from a 
challenge to fight : " Si post eum expectet vel evocet ut ille 
" revertatur in eum, non est forestel si se defendat." 
Hamsocna was, no doubt, the earlier form of burglary. 
4 " Hamsocna quod domus invasionem Latine sonat fit 
" pluribus modis. Hamsocna est si quis alium in sua vel 
" alterius domo cum ^ haraido assailiaverit vel persequatur, 
" ut portam vel domum sagittet vel lapidet vel colpum 
" [? culpam] ostensibilem undecunque faciat. Hamsocna est 

^ Here follow quotations from Jerome and the Bible. 

2 Aif^ 64 . Thorpe, i. 97. 

3 Hen. 1, Ixxx. 4 ; Thorpe, i. 586, derived in Thorpe's Glossary from fore, 
before, and stellan, to leap or spring. 

4 Hen. 1, Ixxx. 10 ; Thorpe, u 587. 

* Haraidum = heri reita. The Bavarian laws took a distinction between 
here reita and heimzucht. For here reita there must be at least forty-two 
armed men. If there were less it was heimziccht (Thor^ie's Glossary). In 
Ina's laws (13 Thorpe, 48) it is said, "Thieves we call as far as 7 men j from 
vii. to XXXV. a Moth: after that it is a here." 



OFFENCES AGAINST PROPERTY. 57 

" vel hame fare si quis premeditate ad domum eat ubi suum Chap. III. 

" hostem esse siet, et ibi eum invadat in die vel nocte hoc 

" faciat ; et qui aliquem in molinum vel ovile fugientem 

" prosequitur hamsocna adjudicatur. Si in curi^ vel domo 

" seditione orta bellum eciam subsequatur et qui vis alium 

" fugientem in aliam domum infuget, si ibi duo tecta sint 

" hamsocna reputatur. Infiht vel insocna est quod ab ipsis 

" qui in domo sunt contubernales agitur." 

Of mischievous offences against property hernet or arson 
is ^ several times mentioned, but with no detail. 

Of fraudulent offences the only one of much importance 
or interest is coining. In nearly all the laws the offences of 
moneyers are referred to in general terms, and as if they were 
well understood. 

Such were the crimes known to Anglo-Saxon law. The 
punishments appointed for them were either fines or corporal 
punishment, which was either death, mutilation, or, in some 
cases, flogging. Imprisonment is not, I think, mentioned in /. 
the laws as a punishment, though it is 2 referred to as a way 
of securing a person who could not give security. The 
fines were called wer, hot, and vnte. The wer was a price 
set upon a man according to his rank in life. If he was 
killed the wer was to be paid to his relations. If he was 
convicted of theft he had in some cases to pay the amount 
of his wer to his lord, or to the king. If he was outlawed 
his sureties (borhs) might have to pay his wer. 

Bot was compensation to a person injured by a crime. It 
might be either at a fixed rate (angild), or at the market 
price of the stolen goods {ceaf-gild). 

Wite was a fine paid to the king or other lord in respect 
of an offence. 

Speaking generally, all crimes were, on a first conviction, 
punishable by wer^ hot, and wite ; the wer being sometimes 
the measure of the hot, or compensation, as where a man 
was murdered and compensation had to be made to his 

^ Hen. 1, Ixvi. 9 ; Thorpe, i. 670, and elsewhere. 

^ ** If a fritmdless man or a conitT from afar bo so distressed through want 
** of fricndH tliat he has no hork (surHty) at the fiumtihtle ^fiint acruHatidn) 
" let liitii tlum submit to ])rison, and \\\v\y abide till he gof.s to (ro<l'» ordeal, 
** and here let him faro as ho may." — (!nnt, ii. M/S ; Thorp**, i. 31>7. 



i 



5^ EARLY ENGLISH PUNISHMENTS. 

Chap. III. relations ; and at other times the measure of the wite, as when 
the thief, being outlawed, his sureties had to pay his wer to 
the king or lord. A great part of many of the laws is 
taken up by provisions fixing the amount of the wer of dif- 
ferent classes of people, and the hot due in particular cases. 
^ The wer is mentioned both in the laws of the Conqueror 
and in the ^ Leges Henrici Frimi, and it also appears in 
^ Henry I.'s Charter to the citizens of London. 

After a previous conviction hot might no longer be made. 

^ " At the first time let him make hot to the accuser, and to 
' " the lord his wer, and let him give true horhs that he will 
'' hereafter abstain from all evil. And at the second time let 
" there be no other hot than the head." 

A certain number of cases were hot-less or inexpiable — 
j^ and the punishment for them was death or mutilation on 
the first offence. 

A passage in the ^ Leges Henrici Primi gives a classifica- 
tion of crimes according to their punishment. The laws of 
Cnut say : ^ " Housebreaking and arson, and open theft, and 
" open-morth, and treason against a lord are by the secular 
" law hot-less" ^ This is repeated in the Leges Henrici Primi 
with the addition of '' effraccio pacis ecclesia vel manus regis 
'' per homicidium." 

The punishment upon a second conviction for nearly every 
offence was death or mutilation. ^ In Ethelred's laws it is 
said of the accused when ultimately convicted — " let him be 
" smitten so that his neck break." 

The laws of Cnut lay down the principles on which punish- 
ment should be administered, and also regulate the practice of 
the court. The principle is thus stated : "Though any one sin, 

^ ** De were ergo pro occiso soluto primo viduse x. sol. dentur et residuum 
** liberi et consanguinei inter se dividant. Poterit autem quis in were 
" solvendo equum masculum non castratum pro xx. sol. dare et taurum pro 
" X. sol. et verrem pro v. sol." (Will. 1, 7, 9 ; Thorpe, i. 471.) 

'^ Hen. 1, Ixxvi. is headed " De precio cujuslibet," and begins thus : "Si 
" homo occidatur sicut natus erit persolvatur." (Thorpe, i. 581.) 

^ " Et homo hundoniarum non judicetur in misericordia nisi ad suam were 
" scilicet ad c. solidos, dico de placito quod adpecuniampertineat." — Stubbs, 
Charters, 108. 4 Ethel, vi. 1 ; Thorpe, i. 281. 

^ Hen. 1, xii.; Thorpe, i. 622. ^ q^u^^ ii_ 65 . Thorpe, i. 411. **Open 
morth" is a contradiction in terms, as the meaning of "morth" is secret 
killing. It may perhaps mean a murder after discovery. 

7 Hen. 1, xii. J Thorpe, i. 522. » Ethel, iii. 4 ; Thorpe, i. 295. 



EAELY ENGLISH PUNISHMENTS. 59 

*' and deeply foredo himself, let the correction be regulated so Chap. III. 

" that it be becoming before God and tolerable before the world. 

" And let him who has power of judgment very earnestly bear 

"in mind what he himself desires when he thus says: ' Et 

" ' dimitte nobis debita nostra sicut et nos dimittimus.' And 

" we command that Christian men be not on any account 

' ' for altogether too little condemned to death ; but rather 

" let gentle punishments be decreed for the benefit of the 

" people ; and let not be destroyed for little God's handy- 

" work, and His own purchase which he dearly bought." 

The practice of the courts is regulated by the following 
enactment : — '' That his hands be cut off, or his feet, or 
" both, according as the deed may be. And if he have 
" wrought yet greater wrong, then let his eyes be put out, 
" and his nose, and his ears, and his upper lip be cut off, 
" or let him be scalped ; whichever of these those shall 
" counsel whose duty it is to counsel thereupon, so that 
" punishment be inflicted, and also the soul be preserved." 

Capital punishment would seem to have been common 
after Cnut's time, notwithstanding his ca,utions against the 
abuse of it, as William the Conqueror found it necessary 
to forbid it. His principles differed from Cnut's, though 
the practical result seems to have been much the same. ^ He 
says : " Interdicimus etiam ne quis occidatur vel suspendatur 
" pro aliqua culpa sed enerventur oculi et abscindantur pedes, 
" vel testiculi, vel manus, ita quod truncus remaneat vivus 
*' in signum proditionis et nequitiaj suae." 



II. EARLY ENGLISH CRIMINAL PROCEDURE. 

The early English 'Criminal Procedure was of two kinds ; 
namely, the law of infangthief, a procedure so summary as 
hardly to deserve the name, and the law of purgation and 
ordeal (urtheiC), a system which formed the first step towards 
our modern law. It is natural to suppose that the more civilised 
system gradually encroached upon and superseded the other. In 
order to explain their relation, it should be remembered that in 

» Will. 3, 17; Thorpe, i. 4Pt. 



6o PRIVATE WAR. 

Chap. III. early times the really efficient check upon crimes of violence 
was the fear of private vengeance, which rapidly degenerated 
into private war, blood feuds, and anarchy. The institution of 
the wer in itself implies this. I have described it in con- 
nection with the subject of punishment, but it belongs 
properly to a period when the idea of public punishment 
for crimes had not yet become familiar ; a period when a 
crime was still regarded to a great extent as an act of war, 
and in which the object of the law-maker was rather to 
reconcile antagonists upon established terms than to put 
down crimes by the establishment of a system of criminal 
law, as we understand the term. 

A few authorities will show the importance of private war 
in reference to the laws of the early English. In the laws 
of Alfred it is enacted, ^ '' That the man who knows his foe to 
" be home-sitting fight not before he demand justice of him. 
"If he have such power that he can beset his foe and 
" besiege him within let him keep him within for seven 
" days and attack him not if he will remain within." Several 
other delays having been provided for, the law proceeds, " if 
" he will not deliver up his weapons then he may attack 
" him." Liberal exceptions are allowed to the restrictions 
imposed by the law upon private war. " With his lord a man 
" may fight orwige {i.e. without committing war) if any one 
" attack the lord : thus may the lord fight for his man." 

In nearly all the laws provision is made for the breach of 
the king's, the lord's, or the Church's peace or protection 
{frith-brycej mund-hryce) in such a way as to show that 
peace was an exceptional privilege, liability to war the 
natural state of things. The King's Peace was extended to 
particular times and places, or conferred as a favour on 
particular persons. 2 « gome time after the Conquest all 
" these special protections were disused : but they were 
" replaced by a general proclamation of the ' King's Peace,' 

1 Alf. 42 ; Thorpe, i. 91. 

2 Palgrave i. 285. A curious instance occurs in the laws of the Conqueror 
(xxvi. ; Thorpe, i. 479). " In tribus stratis regiis, id est Wateling Street, 
** Ermonge Strete et Fosse" (the French version says "quatre chemius," 
adding " Hykenild ") "qui hominem per patriam traiiseuntem occiderit 
" vel insultum fecerit, pacem regis infringit." 



TRIAL BY COMBAT. 6 1 

" which was made when the community assented to the Chap. ill. 

" accession of the new monarch : and this first proclamation 

" was considered to be in force during the remainder of his 

" life, so as to bring any disturber of the public tranquillity 

" within its penalties. So much importance was attached 

" to the ceremonial act of the proclamation that even in the 

" reign of John, offences committed during the interregnum 

" or period elapsing between the day of the death of the 

" last monarch and the recognition of his successor were 

" unpunishable in those tribunals whose authority was 

'' derived from the Crown." 

When trial by combat was introduced by AVilliam the 
Conqueror the language used expressly treats it as a modified 
form of private war. ^ " Si Anglicus homo compellet aliquem 
" Francigenam per beUum, de furto, vel homicidio, vel aliqua 
" re pro qua bellum fieri debeat vel judicium inter duos 
" homines, habeat plenam licentiam hoc faciendi." Indeed 
trial by battle was only private war under regulations. 

Strongly as these instances illustrate the importance of 
crime, and the space which it filled in early times, I 
am not sure that the same inference may not be drawn 
even more plainly from some isolated rules of the early laws. 
The laws of Ina establish what we should call a presump- 
tion of law as follows : ^ " If a far-coming man or a stranger 
" journey through a wood out of the highway, and neither 
" shout nor blow his horn, he is to be held for a thief, either 
" to be slain or redeemed." Several of the laws provide 
that if a stranger stayed three days in his host's house the 
host was to be answerable for him, ^"Nemo ignotum vel 
*' vagantem, ultra triduum absque securitate detineat." These 
rules are precisely analogous to the * ancient identification 
between a stranger and an enemy as " hostes." 

The Law of Summary Execution or Infangthief. — 
A single step, but still a step, however short, from private 

^ "Carta Re^is Willelmi de appellntis pro aliquo maloficio. Franco ve 1 
Anglico." (Will. 3, 1 ; Thorpe, i. 488.) 

'^ Ina, 20 ; Thorxw, i. 117. * Hen. 1, riii. 6 ; Thorpe, i. 516. 

* " HostiH enim apnd majoros nostroB is (lionbatur qn«ni nunc iMTogrinuni 
" dicimua."— C'lccry dc OJiciis, i. 12. '* lIoBtis " was itself a eupliPmiHni for 
" pcrduellia. " 



62 



INFANGTHIEF. 



Chap. III. 



..W 



■^ 



war and blood feuds is made when people are invested 
by law with the right of inflicting summary ^punishment 
on wrongdoers whose offences injure them personally. To 
recognise the right of the injured husband, or owner of pro- 
perty, to put the adulterer or thief to death there and then, 
is a nearer approach to law than to leave them to fight out 
their quarrel subject to a compulsory arbitration ending in 
the payment of a prescribed sum. 

Of this right of summary execution the Saxon laws are full, 
as the following extracts show : " If a thief be seized let 
" him perish by death, or let his life be redeemed according 
" to his wer^' say the laws of 2 Ina, meaning apparently that 
the thief's fate was to be in the discretion of his captor. 
3 Another of Ina's laws says, " He who slays a thief must 
*' declare on oath that he slew him offending ^not his gild 
" brethren." A very obscure law of Ethelstan's begins 
thus : ^ " That no thief be spared who may be taken liand- 
'' hcehhende above xii. years and above eight pence." The 
rest of the law implies that in some cases the thief may be 
imprisoned. Another law of the same king ^ implies that 
the natural and proper course as to thieves was to kill them. 
" If any thief or robber flee to the king or to any church and 
" to the bishop, that he have a term of nine days. And if 
" he flee to an ealdorman, or an abbot, or a thane, let him 



^ A curious modern example of this is to be found in Burnes's Travels into 
Bokhara : " In one of our rides about Pesbawur " (then, in 1831, an Afghan 
city) "we had a specimen of justice and Mohammedan retribution. As we 
" passed the suburbs of the city we discovered a crowd of people, and on a 
'* nearer approach saw the mangled bodies of a man and woman, the former 
" not quite dead, lying on a dunghill. The crowd instantly surrounded the 
* * chief and our party, and one person stepped forward and represented, in a 
" trembling attitude, to Sultan Mohammed Khan that he had discovered his 
" wife in an act of infidelity, and had put both parties to death ; he held the 
" bloody sword in his hands, and described how he had committed the deed, 
' ' The chief asked a few questions, which did not occupy him three minutes ; 
" he then said, in a loud voice, ' You have acted the part of a good Moham- 
" medan, and performed a justifiable act.' He then moved on, and the crowd 
" cried out * Bravo ' [Afreen). The man was immediately set at liberty. We 
" stood by the chief during the investigation, and when it finished he turned 
" to me and carefully explained the law. 'Guilt,' added he, * committed on 
" * a Friday is sure to be discovered.' " — Burnes's Travels into Bokhara, 
i. 93, 94. 

2 Ina, 12 ; Thorpe, i. 111. ^ j^a, 16 ; Thorpe, i. 113. 

* These obscure words are supposed by Mr. Thorpe to mean that the slayer 
must not himself be a thief ("Thieves we call as far as vii. men," says Ina, 13), 
The slayer must not be one of the other six. 

5 Ethelr. 1 ; Thorpe, i. 199. » Ethel, iv. 4 ; Thorpe, i. 223. 



KILLING THIEVES. 63 

" have a term of three days. And if any one slay him Chap. III. 

*' within that term then let him (i.e. the slayer) make hot the 

" mund-'byrd of him whom he before had fled to " (i.e. pay a 

fine for the breach of the protection of the person to whom 

the thief had fled). " And flee he (the thief) to such socn 

" as he may flee to" (i.e. in whatever jurisdiction he takes 

" refuge) " that he be not worthy of his life but as many days 

''as we here above have declared, and he who after that 

" harbours him (the thief) let him (the harbourer) be worthy 

" of the same that the thief may be, unless he can clear 

" himself that he knew no guile nor any theft in him." 

^The Judicia Civitatis Lundonice begin by declaring 
'' that no thief be spared over xii. pence, and no person over 
'' xii. years whom we learn according to folkright that he is 
'' guilty and make no denial ; that we slay him and take all 
" he has." Many provisions are made as to following thieves 
and tracking them, and in the 7th rule it is provided " that 
" he who should kill a thief before other men that he be 
"12 pence the better for the deed and for the enterprise 
" from our common money." There are to be monthly 
meetings, at which the persons present are to dine together, 
and if it then happened that any men be so strong and so 
great "... that they refuse us our right, and stand up in 
" defence of a thief . . . that we all ride thereto, and avenge 
" our wrong and slay the thief, and those who fight and 
*' stand with him, unless they be willing to depart from him." 
2 In the laws of Edward the Confessor elaborate provisions 
are made for trying the question whether a person killed as 
a thief *' injuste interfectus sit, et injuste jacet inter latrones." 
If it appears that this is the case the body is to be taken up 
and reburied " sicut Christianum,*' with proper ecclesiastical 
ceremonies. 

The law of infangthief comes very near to this. It may 
indeed be viewed as a particular case of summary execution. 

^ See on this document some curious and interesting remarks of Mr. Coote, 
inteiKled to show tliat it contains some rules of a Roman collegium, the object 
of which was the rerovfry of stolen stock and slaves, and the indcniniBcatioa 
of thf! owners if they could not be recovered. — Jio7nani in liritain, 894, &c. 
For the document, see, Thorpe, i. 229 — 248. 

- Kdw. Conf. xxxvi.; Thorpe, i. 460. 



I 



64 INFANGTHIEF AFTER THE CONQUEST. 

Chap. III. Jt was one of the franchises usually conceded to the lords of 
townships, and is thus defined in the laws of Edward the 
Confessor : ^ " Justicia cognoscentis latronis sua est, de 
" homine suo si captus fuerit super terram suam." ^ Infang- 
thief long survived the Conquest, though the exertion of the 
right was put under restrictions. ^ In the Hundred Rolls 
which record the results of an inquiry into the whole state 
of government in England at the beginning of the reign of 
Edward I. a return is made of the franchises exercised by 
lords of manors in most of the counties in England, hundred 
by hundred. These returns show that at that time the 
franchise of infangthief was common. It soon, however, 
disappeared. Sir Francis Palgrave says, *'' In England the 
" records and annals of the law have not furnished any 
" instances of the exercise of infangthief after the reign of 
" Edward III., except in one northern borough, Halifax, 
" where a judicature grounded upon the Anglo-Saxon custom 
'' subsisted until a comparatively recent era." Of these 
modes of punishing crime. Sir F. Palgrave w^eU observes, 
^"Perhaps the name of legal procedure can scarcely be 
" given with propriety to these plain and speedy modes of 
'' administering justice : they are acts deduced from the mere 
" exercise of the passions natural to man, and the law consists 
" only in the restrictions by which the power of self-protec- 
" tion and defence were prevented from degenerating into 
" wanton and unprovoked cruelty." 

Police Organisation, Purgation, Ordeal. — ^Side by 
side with the rough, indeed barbarous, institutions just 
described, the early laws contained provisions which 
formed the foundation on which a more enlightened 
system was gradually constructed. The best order 
in which to consider them will be to speak first of 

1 Ewd. Conf. xxii.; Thorpe, i. 452. 2 Palg. i. 210. ^ s^e infra, p. 125. 

4Palg.i. 213. 5 Palg. i. 211. 

® The whole subject of the early English courts and the territorial divisions 
of the country has been examined with so much labour and with such a profu- 
sion of learning by Mr. Stubbs, that I have felt it safer as well as easier to 
adopt his conclusions upon the matters treated of in this section than to under- 
take the arduous task of examining the original authorities for myself. 
Though he has added much to what is stated in the earlier works of Pal- 
grave, Hallam, and Kemble, I do not think he has altered their principal 
conclusions. 



I 



HUNDREDS, TITHINGS, FRANK-PLEDGE. 65 

the local distribution of the country for purposes of police, Chap. III. 
and also for the purposes . of criminal jurisdiction, and 
then to pass to the modes of trial, and to the infliction of 
punishment in cases in which punishments proper in our 
sense of the word were inflicted. 

^ The territorial divisions known to the early English, and 
bearing on the subject of the administration of criminal jus- 
tice, were the kingdom, the shire or county, the hundred or 
wapentake, and the tithing, which it does not seem easy to 
distinguish from the township or parish. The greater town- 
ships were called hurhs. The administration of justice 
was one of the great prerogatives of the king. For each 
shire there was an earl or alderman, and a sheriff or viscount. 
Whether there was or was not a chief officer for every 
hundred is doubtful; but such officers did exist in some 
cases. Each township or tithing was on all occasions repre- 
sented by a body of five principal inhabitants, namely, the 
reeve and four men. 

2 Under the later kings, and in the days of William the 
Conqueror and his sons, laws were enacted whereby " all 
" men were bound to combine themselves in associations of 
" ten," each of whom " was security for the good behaviour 
" of the rest," and had to produce him if he were charged 
with any offence, and if they failed to do so to make good 
any mischief he had done. These associations were called 
tithings or frith-horhs, or frank-pledges. How far they 
were connected with the local tithings is not clear. 

^ " The * view of frank-pledge,' the business of seeing that 
" these associations were kept in perfect order and number, 
" and of enforcing the same by fine was one of the agenda 
" of the local courts, and became ultimately, with the 
" other remunerative parts of petty criminal jurisdiction, 
" a manorial right exercised in the courts-leet, where it 
" still exists." 

Besides the tithings and hundreds there were also liberties or 

franchises within which prevailed all or some of the privileges 

comprised under the words '^ Sac and soc, toll and team^ and 

" infang 'thief .'' These were simply hundreds or tithings 

1 Stul.bH, i. 101. '' lb, 87. 3 //,. 88. 

VOL. I. F 



66 EARLY ENGLISH POLICE. 

Chap. Ill, granted as a privilege to private persons, and standing 
outside the general organisation. 

This organisation still exists in name. We have still 
shires with their sheriffs (the earl's office having become 
merely titular), hundreds which till 1869 had their high 
bailiffs, chief constables, or other officers ; and parishes, town- 
ships, and tithings which till 1872 had their parish constables, 
borsholders, and tithing-men, though the police functions 
of these officers had within living memory been superseded 
by more modern arrangements. We have still also liberties 
with their ancient names. The Soke of Peterborough may 
stand as one amongst many instances. 

In early times these institutions formed the police 
system of the country, and in that capacity had various 
duties, of which the most important was that of Taising in 
case of need the hue and cry, and tracking thieves and 
stolen cattle. The early laws are full of provisions on 
this subject, the substance of which is that if the track of 
stolen cattle is followed into land it must either be followed 
out or paid for. In the Judicia Givitatis Lundonice the 
following passage occurs : ^ " And if any one trace a track 
" from one shire to another, let the men who there are next 
" take to it, and pursue the track till it be made known to 
" the reeve ; let him then with his manuncy (the people of 
" his district) take to it and pursue the track out of his shire 
*' if he can, but if he cannot let him pay the angylce (the 
" fixed price analogous to the were) of the property, and let 
" both reeveships have the full suit in common, be it where- 
" ever it may, as well to the north of the march as to the 
" south, always from one shire to another, so that every reeve 
" may assist another for the common /nY/i (peace) of us all 
"by the king's oferhyrnes " {i.e. under pain of being guilty of 
a neglect of duty, and so liable to a fine). 

Upon the whole the early police may be thus shortly 
described. The sheriffs of counties, the bailiffs of hundreds, 
the reeves and four men of townships, were its offi- 
cers. Their duty was to arrest criminals and recover stolen 
property. In this they were assisted by the institution 

1 Thorpe, i. 237. 



EARLY ENGLISH COURTS. 



67 



of frank-pledge, which made every one accountable for all Chap. IIL 

his neighbours. 

The next step in tracing out the early procedure is to 
describe the Courts of Justice. ^ In the later period of 
our early history the administration of justice was re- 
garded as the great prerogative of the king, who, after a long 
series of struggles, had become ^ " the source of justice, the 
'' lord and patron of his people, the owner of the public lands." 
Though he occasionally discharged this office either per- 
sonally or by the officers in immediate attendance upon him, 
the regular and stated method of doing so was through the 
local courts which were held before his officers, ^the ealdor- 
man, and the sheriff, or before landowners to whom he had 
granted jurisdiction {sac and soc) in their ow^n bounds. These 
officers may roughly be described as the judges of the courts, 
though it is probable that there was little in common between 
their duties and those of a judge of the present day. The 
courts themselves corresponded to the police organisation, 
and were as follows : — 

(1) The township officers, who could scarcely be said to 
form a court, but were rather the executive officers of the 
superior courts. 

(2) The Hundred Courts. 

(3) The County Courts. 

(4) The Courts of Franchises, which were, so to speak, 
hundreds in themselves. 

Each of these Courts was in the nature of a public 
meeting, attended by specified "suitors," or members, just as 
the Courts of Quarter Session in our own days are meetings 
of the county magistrates, and form a court of which the 
magistrates might be called the suitors. The suitors at 
the hundred court were the parish priest, the reeve, and 
the four men of each township in the hundred ; at the 
county court the same persons from each township in the 
county, all lords of lands, and all public officers were also 
suitors. Each court had jurisdiction in both civil and' 
criminal cases. On the criminal side the court was called the 

^ Stubb.s, i. 90. » Stiibhs, i. 207. 

•* Th(! bishop also sat in tho County Court, but I shall rofor to this part 
of the subject elsewhere. 

F 2 



68 PROCEDURE OF EARLY ENGLISH COURTS. 

Chap. III. Sheriff's tourn (or circuit). There appears to have been no 
distinction for purposes of criminal jurisdiction between the 
hundred court and the county court, as the sheriff's tcntrn was 
simply the county court held in and for a particular hundred. 

^The court consisted of the suitors collectively, but 
" a representative body of twelve seem to have been insti- 
"tuted as a judicial committee of the court." 

Such were the early courts. The next question is as 
to their procedure. 2 According to Sir Francis Palgrave it 
was wholly oral. The court was summoned by verbal 
messages sent through the district, or perhaps by a token. 
" All the proceedings in these assemblies participated of their 
" native rudeness and simplicity. Scribes, or registrars, were 
"not required to attend the meeting of the hundred or the 
*' shire : the memorials of the court were entrusted to the 
"recollections of the Witan, the judges by whom the 
" decrees were pronounced . . . Legal archives, in the proper 
"sense of the words, did not exist among the Anglo-Saxons. 
" On rare occasions the verdicts of the hundred or the shire 
'' might be written in the blank leaves of the missal belong- 
" ing to some neighbouring minster ; but though this mode 
"of preserving the history of the transactions might be 
"adopted, the document had no legal effect. It could not 
" be pleaded, and the strict and proper mode of legal proof 
" was by appealing to living testimony. If evidence was 
"required of judicial transactions, the proof was given by 
" the hundred or shire, in its corporate capacity, the suitors 
"bearing witness to the judgments which they or their 
" predecessors had pronounced." 

The procedure itself appears to have consisted of accusa- 
tion and trial. 

3 Accusation might be made either by the committee men- 
tioned above, who possibly may have been the predecessors of 
the grand juries of later times, or by the four men and the reeve 
of the township, or lastly by a private accuser. This appears 
as to the twelve thanes from the laws of ^Etheldred : — 

1 Stubbs, i. 103. See more particularly Leges Henriei Frimi, v. De 
causarum preprietatibus. Thorpe, i. 505. ^ Palg. i. 143. 

3 lb. 213. * Ethel, iii. 3 ; Thorpe, i. 294-295. 



ACCUSATION. 69 

"and that a gemot be held in every wapentake, and the Chap. Iir. 
*' twelve senior thanes go out, and the reeve with them, and 
" swear on the relic that is given to them in hand, that they 
"will accuse no innocent man, nor conceal any guilty one." 

That the four men and the reeve had also a power of 
accusation is inferred by Sir Francis Palgrave from a passage 
in the laws of Cnut : — ^ " And if any man be so untrue to the 
''hundred, and so tiht-bysig (ill-famed), and three men 
" together then accuse him, let there be no other (course) but 
" that he go to the threefold ordeal ; " also from one of the 
laws of William the Conqueror: — 2" gi q^ig in hundredo 
''inculpatus fuerit et a iv. hominibus rettatus (accused) purget 
*'se manu xii." Several passages in the laws seem to show 
that a single person could accuse another. The most im- 
portant occur in one of the laws of ^ Ina, which is interesting 
because it implies that a person accused might be bailed, and 
if he could not get bail, be imprisoned till trial : — " When a 
" man " (A) " is charged with an offence, and is compelled to 
" give pledge, but has not himself aught to give for pledge, 
" then goes another man " (B) '' and gives his pledge for 
"him, as he may be able to arrange, on the condition that 
"he" (A) "give himself into his" (B's) "hands until he" 
(A) " can make good his " (B's) " pledge. Then again a 
" second time he " (A) " is accused and compelled to give 
" pledge ; if he will not continue to stand for him who 
" before gave pledge for him " (if B will no longer go bail for 
A) " and if he " (the last accuser) " then imprison him " (A), 
" let him " (B) " then forfeit his pledge who had before 
" given it for him " (A). This wilderness of pronouns seems to 
have the following meaning : — A is accused of a crime, B gives 
bail upon condition that A will put himself into B's custody 
till A appears to answer the accusation. A second accusa- 
tion is then made against A. B refuses to give further 
security, and A is imprisoned by his second accuser. B 
forfeits the security he gave for A's appearance on the first 
charge. This must refer to charges before two difforont 
courts. A is accused in London, and B gives bail for his 
appearance in London. If A is accused and imprisoned in 
^ Cnut, 30 ; Thorpe, i. 893. » Thorpe, L 487. ' Ina, 62 ; Thonw, i. 14M42. 



70 CQMPUKGATION. 

Chap. Ill respect of that accusation at Bristol, B forfeits his recognis- 
ance in London, if by reason of the imprisonment at Bristol 
A does not appear in London. 

^ Several forms of the oaths of accusation taken by indi- 
vidual accusers are still preserved, which implies that 
private accusations were common : — " By the Lord before 
*' whom this relic is holy, I my suit prosecute with full folk 
" right, without fraud and without deceit, and without any 
"guile, as was stolen from me the cattle N, that I claim, and 
" that I have attached with N. By the Lord I accuse not N 
" either for hatred, or for envy, or for unlawful lust of gain ; 
" nor know I anything so other, but as my informant to me 
" said, and I myself in sooth believe that he was the thief of 
'' my property." 

The form of the oath would no doubt vary according to the 
nature of the crime imputed. 

The mode in which the trial was conducted can still be 
traced with reasonable distinctness from the enactments of 
2 several kings which repeat each other with variations, the 
most complete types being those of Ethelred and Cnut. 

The accused person denied in general terms and upon 
oath what was imputed to him. ^ His oath was : — " By the 
" Lord I am guiltless, both in deed and counsel of the charge 
" of which N accuses me." 

This being done, the question of his guilt was to be 
decided, according to the character of the accused, by the 
lad, i.e. by compurgation, or by ordeal. If he was of 
good character he was entitled to the lad, or "oath- 
worthy." If the lad failed, or in the expressive words of 
the law, "if the oath burst," or if he was ti/it hysig, i.e. 
a man of bad character, he was obliged to go to the ordeal. 

The first question accordingly at the trial was as to his 
character, which was decided by the system of ho7^hs or 
sureties, which was as follows : — 

^"Ethelstan enacted that the lord or the lord's steward 
"should answer for all his men." " Omnis homo " (obviously 

1 Thorpe, i. 179-185. 

2 Ethelred, i. 1 ; Thorpe, i. 283 ; Cnut, ii. 30 ; Thorpe, i. 393 ; Hen. 8, 
xli. 6 ; lix. 6 ; Ixiv. 9 ; Ixv. 3 ; Thorpe, i. 515-541. 

3 Th. i. 181. * aEthelstan ii. ; Thorpe, i. 217. 



COMPURGATOKS OATHS. 7 1 

€very lord) " ten eat homines suos in fidejussione sua contra Chap.hL 

" omne furtum. Si tunc sit aliquis qui tot homines habeat 

■"quod non sufficiat omnes custodire prseponat sibi singulis 

" villis prsepositum unum qui credibilis sit ei, et qui concre- 

"dat hominibus. Et si prsepositus alicui eorum hominum 

^' concredere non audeat inveniat xii. plegios cognationis suae 

" qui ei stent in fidejussione." 

" That every freeman have a true horh, that the horh 
" may present him to every justice if he should be accused." 

2 Cnut enacted, " We will that every freeman be brought 
*' into a hundred and into a tything who wishes to be entitled 
" to lad or wer in case any one shall slay him after he is 
"twelve years of age. Let him not afterwards be entitled 
*' to any free rights be he heath-fcest ^ (living in his own 
"house), be he follower. And that every one be brought 
"into a hundred and in horh, and let the horh hold 
"and lead him to every plea. Many a powerful man will 
"if he can and may defend his man in whatever way it 
" seems to him that he may the more easily defend him, 
" whether as a freeman or a theoir. But we will not 
"allow that injustice." Later enactments developed this 
into the law of frank-pledge {frith-'borh — peace-pledge) already 
referred to. 

The accused then being "led to the plea" by his hm^lb, 
the horh had to swear that the accused had not been 
convicted since a certain period. The oath to be taken 
under Ethelred's law was ^"that he has not failed neither 
" in oath nor ordeal since the gemot was at Bromdun." 
In ^Cnut's time, "since the gemot was at Winchester." 
Under each of these laws the oath was to be made not 
only by the lord of the accused (if he had one,) but by 
" two true thanes of the hundred or' the reeve," who were 
also to swear that the accused had not paid ihicf-gild. 
This being done the accused was entitled to choose whether 
ho would have a "single ordeal" or a "pound-worth oath 
within the three hundreds for above xxx. pence." ^The 

* Ktlielred, i. 1 ; Thorpe, i. 281. " Cn. ii. 20 ; Tlion>c, i. 887. 

=* Thorpo'H note. ' * Ethelrcd, i. 1 ; Thoriw, i. 281. 

^ Ciuit. ii. 30 ; Thorpe, i. 393. " Edgar, 9 ; Thorpe, I 2(J1. 



72 ORDEAL. 

Chap. III. single ordeal was handling a piece of red-hot iron of a pound's 
weight or plunging the hand up to the wrist into boiling 
water. ^ How many witnesses were " a pound-worth " does 
not appear, nor do I think that it appears clearly how it 
was determined who the witnesses were to be, and in 
particular whether the accused might call whom he would, 
or whether the sheriff summoned the persons whom he 
believed to be most likely to know the facts, subject to 
some right of challenge on the part of the prisoner; but 
however this may have been the lad or compurgators 
swore not to particular facts, but in general terms to their 
belief in the innocence of the accused. This appears from 
the form of the oath, which is as follows : — " His " (the 
accused) " companion's oath who stands with him " (the 
accused)—^'' By the Lord, the oath is clean and unperjured 
*' which N has sworn." 

Whether any evidence at all was given of particular facts, 
and if so, at what stage of the proceedings, and in what 
manner, it is now impossible to say. It is hardly conceivable 
that the necessity for it should not have been perceived at a 
very early time, and it is not unlikely (though this is of 
course a mere conjecture) that the compurgators might have 
a right to have witnesses to facts examined before, to use an 
expression which often occurs in the laws, they "dared" to 
swear. All that can be positively affirmed is, that ^ witnesses 
are mentioned in the laws of Henry I. and that ^ a form of 
oath has been preserved, which implies that evidence in our 
sense of the word, was, or might be, given at some stage of 
the proceedings. ''How he shall swear that stands with 
"another in witness. In the name of Almighty God as I 
" here, for N in true witness, stand unbidden and unbought, 
" so I with my eyes oversaw, and with my ears overheard that 
"which I with him say." 

^ In many parts of the laws there are provisions about the relative value of 
the oaths of people of different ranks and professions, e.g. "A mass priest's 
*• oath and a secular thane's are in English law reckoned as of equal value, 
*' and by reason of the seven church degrees that the mass priest, through the 
** grace of God, has acquired, he is worthy of thane right." "A twelf-hynde 
*' man's oath stands for six ceorls' oaths, because if a man should avenge a 
'• twelf-hynde man he will be justly avenged on six ceorls, and his wer-gild 
« will be SIX ceorls' ' wer gilds.' " — Thorpe, i. 183. 

2 Hen. 5, L ; Thorpe, i. 505. ^ Thorpe, i. 181. 






CONSEQUENCES OF CONVICTION. 73 

However this may have been, if the oath succeeded the Chap. III. 
accused was acquitted. If it failed or '' burst," that is, if the 
witnesses could not be found, or would not swear, or if the 
accused were a man of bad character, he had to go to the 
triple ordeal (wtheil), that is ^to handle red-hot iron of 
three pounds weight, or to plunge his arm into boiling water 
to the elbow. 

It is unnecessary to give a minute account of the cere- 
monial of the ordeals. They were of various kinds. The 
general nature of all was the same. They were appeals to 
God to work a miracle in attestation of the innocence of the 
accused person. The handling of hot iron, plunging the 
hand or arm into boiling water unhurt, were the commonest. 
The ordeal of water was a very singular institution. 
Sinking was the sign of innocence, floating the sign of guilt. 
As any one would sink unless he understood how to float, 
and intentionally did so, it is difficult to see how any one 
could ever be convicted by this means. Is it possible that 
this ordeal may have been an honourable form of suicide, 
like the Japanese happy despatch ? In nearly every case 
the accused would sink. This would prove his innocence, 
indeed, but there would be no need to take him out. He 
would thus die honourably. If by any accident he floated, 
he would be put to death disgracefully. 

If the ordeal failed, the accused was convicted, the 
consequences of which were provided for as follows: — 
2 Ethelred says, " If he be guilty at the first time, let him 
" make hot to the accuser twofold, and to the lord his wer, 
" and let him give true horhs that he will thereafter abstain 
" from every evil. And at the second time let there be no 
"other hot than the head. But if he run away and avoid 
"the ordeal, let the horh pay to the accuser his ceap-gild 
(the market price of the thing stolen) ^ and to the lord his 
*^v)er who is entitled to his wile. If any one accuse the 

1 Edgar, 9 ; Tliori)e, i. 261. The fullest description of an ordeal by liro is 
in the laws of EtluflHtan, iv. 7 ; Thorpe, i. 227. 

2 Ethelred, i. 1, Thorpe;, i. 282-283 ; and Cnut, ii. 30, Thorpe, i. 893-394. 

3 i.e. th(! vmre of the offender is to be paid to the lord who is ontitlctl to 
the ivUe (or line) due in rositect of the offence. The ?/v/v; meant both the 
price to be paid to a person's relations if ho was killed, and the price to lie 
I)aid in respect of him if he committed an offence. 



74 CONSEQUENCES OF CONVICTION. 

Chap. III. ''lord that he (the man) ran away by his (the lord's) counsel 
" and that he (the lord) had previously acted unlawfully, let 
" him (the lord) take to him five thanes and be himself the 
"sixth, and clear himself thereof. And if the purgation 
" succeed, let him (the lord) be entitled to the wer. And if 
"it do not succeed let the king take the wer and let the 
"thief be an outlaw to all people." The law of Cnut is 
to the same effect, but the punishments differ, as I have 
already said. 



HISTOEY OF MODEEN COUETS. 75 



CHAPTER IV. 

THE OEDINAEY CEIMINAL COUETS — QUEEN' S BENCH DIVISION 
OF THE HIGH COUET, THE COUETS OF ASSIZE, THE COUETS 
OF QUAETEE SESSIONS, COUETS OF SUMMAEY JUEISDIC- 
TION, FRANCHISE COUETS, WELSH COUETS. 

^ Ceiminal justice is in the common course of things ad- Chap. IV. 
ministered in the present day by the Queen's Bench Division 
of the High Court of Justice, the Assize Courts, the Central 
Criminal Court, and the County and Borough Courts of 
Quarter Sessions. I propose to relate the history of these 
courts and that of the courts which they superseded in the 
present chapter. I shall relate in other chapters the history of 
Parliament considered as a court of criminal jurisdiction, the 
history of the criminal jurisdiction of the Privy Council and 
that of the Court of Star Chamber. ^ The history of the Ad- 
miralty Jurisdiction will be considered under a different head. 

In a very few words the history of the ordinary courts is 
as follows : Before the Conquest the ordinary criminal court 
was the County or Hundred Court, but it was subject to the 
general supervision and concurrent jurisdiction of the King's 
Court. The Conqueror and bis sons did not alter this state 
of things, but the supervision of the King's Court and the 
exercise of his concurrent jurisdiction were much increased 
both in stringency and in frequency, and as time went on 
narrowed the jurisdiction and diminished the importance of 
the local court. In process of time the King's Court developed 
itself into the Court of King's Bench and the Courts of the 
Justices of Assize, Oyer and Terminer and Gaol Delivery, 

1 For the constitution of tlie ■•xisting criminal courts stated systoninticftlly, 
sec Dirj. Crim. Proc. pp. 9-16. " See^Wtf^ Ch. XVI. Vol. 11. p. 1. 



76 SUMMARY. 

Chap. IV. or to use the common expression, the Assize Courts ; and 
the County Court, so far as its criminal jurisdiction was 
concerned, lost the greater part of its importance. 

These changes took place by degrees during the reigns 
which followed the Conquest, and were complete at the 
accession of Edward I. 

In the reign of Edward III. the Justices of the Peace were 
instituted, and they, in course of time, w^ere authorised to 
hold Courts for the trial of offenders, which are the Courts of 
Quarter Sessions. The County Court, however, still retained a 
separate existence, till the beginning of the reign of Ed ward lY., 
when it was virtually, though not absolutely, abolished. A 
vestige of its existence is still to be traced in Courts Leet. 

The Courts of summary jurisdiction have been established 
within the last few years. 

The courts above mentioned formed and form the regular 
provision for the administration of criminal justice throughout 
England, but besides them the right of administering justice 
within particular local limits was granted by way of franchise 
to particular persons, either in their individual or in their 
corporate capacity. The leading features of their history are 
shortly these : The judicial authority annexed to manors has 
long since dwindled to almost nothing, though some traces 
of it may be discovered. A few of the greatest of all the 
franchises (especially the Courts of the Counties Palatine, 
Chester, Durham, and Lancashire), were annexed to the 
Crown and survived as mere names till very modern times. 

The franchise of the City of London was merged in the 
Central Criminal Court established in 1834. The franchises 
of the other cities and towns corporate were of an extremely 
varied character. Most of them were regulated as far as the 
question of criminal jurisdiction is concerned by the Muni- 
cipal Corporations Act of 1834, and many others to which 
that Act did not apply have become obsolete and are 
forgotten, although they have never been formally abolished. 

Lastly, Wales became a part of England by several suc- 
cessive steps, from the reign of the Conqueror, downwards. 

This is the outline of the history which I now propose 
to relate more fully. 



THE ANCIENT COUNTY COURTS. ']'] 



THE COUNTY COURTS. 

Nothing can be more definite than the image which the Chap. IV. 
words "court of justice" raise in our minds. We associate 
with the expression a large room arranged in a particular 
way. The proceedings follow a well-known prescribed 
routine, and terminate in a definite result. 

Such associations, would be misleading if they were 
allowed to influence our conception of the courts of the 
early kings, and their subjects and officers. The courts 
of those days supplied the means by which every kind of 
business was transacted, and had probably a greater resem- 
blance to a public meeting than to a court of justice in 
the modern sense of the term. This was true of all courts 
whatever, but especially of the County Court, which was in _, 
the earliest times of our history, and continued to be down to f 
the reign of Edward L, if not later, ^"the Folkmoot, 
" or general assembly of the people," in which were trans- 
acted all the more important branches of public business, 
judicial, financial, and military. ^ The sheriff was in 
early times " the king's steward and the judicial president "^ 
" of the shire, the administrator of the royal demesne, and 
" the executor of the law." It is impossible to determine 
precisely the relation which he bore to the Ealderman, and 
the extent to which the Bishop took part in or controlled 
his proceedings. Such questions have in a practical point of 
view no importance, as from the Conquest at all events the 
Ealderman's office merged in the titular dignity of an earl, 
and the Bishop acquired a separate court with a jurisdiction of 
its own by the charter of William I. It is equally difficult to 
give a perfectly clear account of the nature of the sheritl's 
functions in criminal trials. He convened the court. He no 
doubt had considerable influence over its decisions, ^ but the 
suitors and not the sheriff were, properly speaking, the judges. 
Whatever his functions may have been and whatever may 

' Stul.l.s, ii. 206. * Ih. i. 113. » Ih. 898-4. 



78 



ILLUSTRATIONS. 



Ch ap. I V. ]i^yq "been the nature of the procedure observed, the court 
itself appears to have been a representative assembly com- 
posed of the lords of lands in the county or their stewards, 
the parish priest, and the reeve and four men from each 
township. The character of the court, its great importance, 
and the fact that the king and his officers had concurrent 
jurisdiction in it with the sheriff, its ordinary president, may 
be gathered from the few remaining reports of its proceedings. 

^ " The great suit between Lanfranc as Archbishop of 
" Canterbury, and Odo as Earl of Kent, which is perhaps 
" the best reported trial of the Conqueror's reign, was tried 
" in the County Court of Kent, before the king's representa- 
" tive Gosped, Bishop of Coutances, whose presence, and that 
" of most of the great men of the kingdom, seem to have 
" made it a Witenagemot. The Archbishop pleaded the 
" cause of his Church in a session of three days on Pennenden 
" Heath ; the aged South-Saxon Bishop Ethelric was brought 
*' by the king's command to declare the ancient customs of 
" the laws, and with him several other Englishmen, skilled 
*' in ancient laws and customs. All these good and wise men 
" supported the Archbishop's claim, and the decision was 
" agreed in, and determined by, the whole county." 

Of course the cases which present features of exceptional 
interest or solemnity, are those which are reported by his- 
torians. It is only by accident that we can get a glimpse 
at the common course of business, by which ordinary thieves 
or murderers were brought to justice. I have however been 
fortunate enough to be referred to what may stand for a 
report of the trial of a common thief, in the reign of 
Henry II. It occurs in the Materials for the Life of Thomas 
Bechet, ^and is one of an immense number of stories of 
miracles, said to have been worked by his intervention after 
his murder. It probably has the same sort of relation to 
actual fact as an account of a trial by a modern novelist 
would have to what actually passes in courts of justice. It 
relates to the miraculous cure of one Ailward, whose eyes 

"1 Stiibbs, i. 277. 

2 Published by the Master of the Rolls, i. 155-7. My friend Mr. Froude 
directed my attention to this curious story. It is also printed in Mr. 
Bigelow's Placita Anglo-Normannica. 



CASE OF THEFT UNDER HENRY II. 79 

and other organs were said to have been reproduced after he Chap. IV. 

had been mutilated by the sentence of the County Court 

of Bedford. The story is as follows : ** Ail ward's neighbour 

" owed Ailward a debt, and when he was asked to pay it, 

" refused ; whereupon Ailward, in a rage, broke open the 

** house of his debtor, which his debtor, ^who had gone to the 

" public house, had left fastened with a lock hanging down 

" outside. Ailward took, as a security, the lock, a whetstone 

" hung from the roof of the house, a gimlet and tools, and 

" went away. The children who were playing in the house, 

" where they had been locked up by their father, told him 

" how the house had been broken open, and how the thief 

" had carried off the things. The father followed him, caught 

" him, and, wresting the whetstone from his hand, as he 

" sauntered, wounded his head with it. He then drew his 

" knife, stabbed him through the arm, and taking him to the 

" house into which he had broken, bound him ^ as an open 

" thief, with the stolen goods upon him. A crowd collected, 

" one of whom was Fulco the apparitor, who suggested, 

" that as a man cannot be mutilated for stealing under the 

" value of a shilling, the stolen goods should be increased by 

" other goods alleged to be stolen. Accordingly there were 

" laid by the prisoner, a bundle, a fellium, linen, gowns, and 

*' the iron tool commonly called volgonum. 

" Next day he was taken with the aforesaid bundle, 
" which was hung round his neck, before one Richard 
" the sheriff and other knights. Lest however, in a matter 
" of doubt, the sentence should be hurried, judgment was 
" deferred. He was kept for a month in the prison at 
"Bedford." 3 

^ "Ad tabernam digressus." 

2 " Quasi furem manifestum cum concepto furto." The use of the tech- 
nical terms of the lioman law is noticeable. 

' The account of the way in which he passed his time in prison is curious, 
though not relevant to the matter in hand. " Interim clam vocato ])agano iiros- 
" bytero suos excessus omnes ab incunte ;etato confessus est, et monitus est 
•' suffragia beatje Maria; sanctommque onmium, et maxime beati Thomic 
" quem Domimis virtutum et signonim indiciis glorificare dignatus oat 
" suppiicitttr imploraro, omnom irani et inccntivum odiorum ab animo 
'• secludere, do JJci misoricordia non dididere, et quiiKpiid ])ati cogorotur 
" a-quanimiter in remissioncm ix-ccatorum coiitiucrc, et vo attentiu.s (|Uod 
" vigilia Pcntecostes ipse parvulus rcgouoratus jkiuA. submcrgi vol igtu' en-- 
" mari non posset sicut vulgaris habuit opinio, si judicium altcnitnun »ubi- 



8o 



CASE OF THEFT UNDER HENRY LL 



Chap. IV. After this, "it happened that he was taken to Leighton 
" Buzzard where the magistrates met (magist7'atihus con- 
" venientibus). There he demanded to fight Fulco his accuser, 
"or to undergo the ordeal of fire, but ^ with the assent of 
" Fulco who had received an ox for it (oh id ipsicm hovem 
'* acceperat) he was condemned to the ordeal of water, so 
" that he might by no means escape. Thence he was taken 
" back to Bedford, where he passed another month in prison. 
" The judges met there (convenientihus judicihics), and when 
" he was given up to be examined by the ordeal of water, 
" 2 he received the melancholy sentence of condemnation, 
" and being taken to the place of punishment, his eyes 
" were pulled out and he was mutilated, and his members 
" were buried in the earth, in the presence of a multitude 
" of persons." The rest of the passage describes their 
miraculous restoration. 

This story sets in a vivid light the procedure of the old 
County Court in a common case of theft. The thief is 
arrested with the goods in his possession. He is taken 
before the sheriff and other knights, and committed to 
Bedford gaol. Two tourns or adjournments of the County 
Court are held in successive months, one at Leighton, 
the other at Bedford. They are described as a meeting 
of magistrates or judges. The words " magistratus " and 
"judices" being probably used in a popular way, and no 
doubt denoting the stewards and other persons of local 
importance who were present at the County Court. The 
defendant claims the trial by combat, but, ^(no doubt 



*• turus esset, virgamque dedit qua quinquies in die suscepta discipliiia Dei 
" misericordiam in se provocaret. Qui monita libenter audiens circumducto 
" filo corporisuo martyri se devovit, emendationem vitc-e promittens, timens- 
*' que sibi panniculos suos diripi in dextro humero calido ferro signum crucis 
" impressit." 

1 Perhaps at the suggestion annuente Fulcoiie. It is difficult to under- 
stand why Fulco should^require a bribe to consent to his enemy being sent to 
the kind of ordeal which appears to have been regarded with most fear. 

2 "Damnationis sua? tristem excepit sententiam," This probably means 
that the ordeal went against him. Can it mean that he shrank from the 
ordeal and pleaded guilty ? The whole passage implies that the ordeal of 
water was more dreaded than that of fire, probably because it gave less open- 
ing for fraud. 

3 The chronicler obviously wishes to make the best of his hero at the 
expense of the apparitor Fulco and the person robbed, but we have not their 



CONCUKRENT JURISDICTION OF KING. 8 1 

because his guilt was considered to be obvious), is adjudged Chap. IV. 
to the ordeal of water. Hereupon he is either found guilty 
or confesses his guilt, and is there and then blinded and 
mutilated. When we remember that at the County Courts 
or meetings held in this manner all sorts of financial and 
military business was transacted, that it was in them 
that ^charters were read, and other proclamations made, 
that in them, ^ the military orders of the sheriff were 
published, and the obligations incident to military tenure 
enforced, and finally, that in them, the local assessment and 
collection of taxation took place, it is obvious that the 
sheriffs who presided over them were at the head of the 
two great branches of government, namely, the financial 
and the judicial branch, and that if they had been altogether 
independent of the king and his representatives, they would 
have been petty kings, each in his own county. 

In the reigns of the Conqueror and his sons they seem in ' 
fact to have held some such position, as ^ there are many 
instances in which the office of a justiciary of the King's 
Court was united with that of the sheriff of a county. 
This led to abuses both by way of oppression and corruption 
which caused the *" Inquest of the Sheriffs" held in 1170 
by the orders of Henry II. On that occasion all the sheriffs in 
England were displaced and an inquiry was made into their con- 
duct by a body of justices specially appointed for that purpose. 
This however was only an isolated measure, and does not 
appear to have changed the legal position of the sheriffs. 

The judicial authority of the old county courts has been 
so completely superseded by other tribunals that it is 
difficult to form a clear notion of the manner in which it 
was exercised, nor has the inquiry any practical importance. 
It seems however that the court was held monthly for 
general purposes, probably at the county town, and twice 
a year under the name of the sheriffs* tourn or circuit 
in every hundred of the county for criminal trials. It 
also appears that by royal grants many districts such as 

account of the matter, and if the prisoner really was innocent, it is not cosy 
to understand the extreme penitence ascribed to him. 

^ Stubbs, 576. 2 Stubbs, ii.212, 8. 

" Stubbs, i. 192, 3. * Stubbs, Charters, 147. 

VOL. I. <; 



82 PLEAS OF THE CROWN. 

Chap. IV. towns, manors, &c., were exempted from the tourn and 
provided with a tourn of their own called the leet, which 
was held not before the sheriff but before the lord of the 
franchise or his steward. Many of these leets are still in 
existence, and their proceedings perhaps give a better notion 
of the ancient criminal procedure than is to be got from books. 
I shall return to them in connection with that subject. 

The steps by which the criminal jurisdiction of the 
County Court became all but obsolete can still be traced 
with fair completeness. In the very earliest times the 
kings when they granted jurisdiction, reserved to themselves 
particular classes of cases. Such at least is the interpretation 
put by 1 Mr. Stubbs on a law of Cnut's. ^ « These are 
"the rights which the king enjoys over all men in Wessex 
"that is mund-bryce (breach of the king's peace or special 
"protection), and ham-socn (burglary), ^ forstal (premedi- 
"tated assault), flymena-firth (outlawry), and fyrd-wite 
" (fines for neglect of military duty), unless he will more 
" amply honour any one and concede to him this worship." 
Mr. Stubbs supposes these were the original ''pleas of the 
" Crown." However this may be, it is certain that when 
Glanville wrote (in the days of Henry II.) the distinction 
between the pleas of the Crown and the pleas of the sheriff was 
well known. He states it at the beginning of his first book. 

* " Placitorum aliud est criminal e, aliud civile. Item 
" placitorum criminalium aliud pertinet ad Coronam domini 
" Regis, aliud ad Yicecomites provinciarum." He then enu- 
merates the pleas of the Crown as treason, concealment of 
treasure trove, breach of the king's peace, homicide, arson, 
robbery, rape, crimen falsi, " Et si quae alia sunt similia : 
" quae scilicet crimina ultimo puniuntur supplicio aut mem- 
" brorum truncatione." The crime of theft (although punished 
by death or mutilation) belongs to the sheriffs, and to them 
also it appertains to take cognisance of frays (medletis) strokes 
and wounds "pro defedu dominorum " (I suppose this means 
where there is no franchise), " unless the accuser lays the 
" offence to be against the king's peace." 

1 Stubbs, i. 187. ^ Thorpe, i. 383 ; Cnut, Secular Laws, 12. 

•* Ante, p. 56. 4 Glanville, p. 1. 



ASSIZES OF CLARENDON AND NORTHAMPTON. 83 

By the assize of Clarendon ^ it was provided that when chap. IV. 
any one was accused before the sheriff of being a " robator ' 

*' vel murdrator vel latro vel receptor eorum " he should he 
sent to be finally disposed of before the justices or if the 
justices were not soon to come into the county then the 
sheriffs were to send word to the nearest justice, and send the 
prisoners to such place as the justice should appoint. 

The 12th article of the assize of Northampton 2( a. D. 1176) 
also provides that a thief {latro) when taken is to be in the 
custody of the sheriff, or, in his absence, of the nearest 
castellanus, but the justices are to take assizes "de 
"latronibus iniquis et malefactoribus terras" (art. 7). The 
language of the rest of the assize seems to imply that the 
justices were to try prisoners accused of all serious offences 
except " minutis furtis et roberiis quae facta fuerunt tempore 
"guerrge sicut de equis et bobus et minoribus rebus." These 
provisions lay down no distinct proposition as to the powers 
of the sheriff, but they imply that the most important cases 
were reserved for the justices. 

The 24th article of Magna Charta is as follows : — '* Nul- 
" lus vicecomes constabularius coronatores vel alii ballivi 
" nostri teneant placita coronse nostrse." What the " placita 
" coronse" meant, in 1215, it is impossible to say precisely. 
They must, at least, have meant serious crimes, and this 
enactment cannot have had a less effect than that of depriving 
the Sheriff's Court of all criminal jurisdiction of importance. 
The sheriff^ s tourn, however, was not expressly abolished by 
Magna Charta. It was held for centuries ; not for the sake 
of trying prisoners, but for the sake of taking indictments 
which were anciently presented before the sheriff in his 
tourn in the way in which an inquisition is now made before 
a coroner. A man can, as the law still stands, be put on his 
trial for murder or manslaughter on a coroner's inquisition. 
Long after the sheriffs had ceased to be judges they con- 
tinued to be the presidents of a number of small local courts 
which could accuse though they could not try. Indeed, till 
justices of the peace were established, the sheriffs and coroners, 
and the grand juries at the courts of the justices, must have 

1 Stubbs, Chartrrs, p. 14.3. \ lb, 167. 

02 



84 DECLINE OF COUNTY COURTS. 

Chap. IV. discharged the duties of committing magistrates. Several 
traces of their proceedings in this respect are to be found in 
the Statute Book. Thus, by the Statute of Westminster 2nd, 
13 Edw. 1, c. 13 (1285), it is enacted, that whereas sheriffs 
have frequently extorted money by imprisoning persons not 
lawfully indicted before them in their tourns on the pretence 
that they were so indicted, such indictments shall, for the 
future, be taken by lawful men, and by twelve, at least, who 
are to put their seals to the inquisition. By the statute 
1 Edw. 3, St. 2, c. 17 (1330), it is provided that the indict- 
ments are to be in duplicate, " so that the indictments shall 
" not be embezzled as they have been in times past, and so 
" that one of the inquest may show the one part of the inden- 
" ture to the justices when they come to make deliverance." 

In the course of the following century the jurisdiction of the 
sheriffs both as judges and as committing magistrates, having 
been practically altogether displaced by the Courts of the 
Justices of Assize and Quarter Sessions, and by the justices of 
. the peace, the tourns became a mere engine of extortion. 
"^Inordinate and infinite indictments and presentments as well 
" of felony, trespasses, and offences as of other things," were 
taken before sheriffs and their subordinates "at their tourns, or 
" law days," which indictments were " oftentimes affirmed by 
" jurors having no conscience, and little goods, and often by 
" the said sheriff's menial servants and bailiffs." The persons 
indicted were then arrested and imprisoned, and " constrained 
" to make grievous fines and ransoms " to procure their 
liberty, and then the indictments were withdrawn. To 
remedy these evils the sheriffs and their bailiffs were for- 
bidden to arrest any person on any such indictments or 
presentments, and were required to carry them before the 
next Court of Quarter Sessions. 

From this time the sheriff's tourn became practically 

obsolete, as it could neither try nor accuse, and the only 

remnant of the ancient criminal jurisdiction of the County 

Court which still survived was to be found in the leet, 

I already referred to. 

I now pass to the courts by which the County Court was 

J 1 Edw. 4. G. 2. 



HIGH COUKT OF JUSTICE. 85 

superseded, and which still continue to administer the Chap, iv, 
Criminal Justice of the country in all common cases. These 
are the High Court of Justice, and especially the Queen's 
Bench Division of it ; the Courts of Assize ; and the Courts 
of Quarter Sessions. 



THE QUEEN S BENCH DIVISION OF THE HIGH COURT OF 
JUSTICE. 

The kings of England had, from a period much earlier 
than the Conquest, claimed and exercised the prerogative of 
being the fountain of justice, and their courts had been the 
centres in which all the most important of the national 
affairs were transacted. In particular, in one way or an- 
other, the whole administration of justice was derived from 
the royal authority. As has been shown above, the king 
sat, or appointed special representatives to sit for him, in the 
County Courts whenever he thought proper to do so, and in 
granting judicial powers to particular courts or persons, he 
made such reservations as to particular classes of cases as he 
thought fit. ^ " In the later laws," says Mr. Stubbs, " the 
" king specifies the pleas of criminal justice which he retains 
" for his own administration and profit ; such a list is given 
" in the laws of Canute ; breach of the king's protection, 
" house-breaking, assault, neglect of the ' fyrd ' (military 
" service), and outlawry. These were the original pleas of 
" the Crown, and were determined by the king's officers in 
" the local courts." 

Under the Norman kings the importance and influence of 
the King's Court, the Curia Regis, was greatly increased. It 
seems to have contained the germ of all the gi*eat insti- 
tutions of our present system of government, though, as yet, 
they were not distinguished from e^ch other. In order to 
form a distinct conception of the Curia Regis as it Was under 
the Norman and Angevin kings, we must bear in mind two 
points in which it differed widely from more modern insti- 
tutions known to us as courts, whether the word is applied 
to courts of justice or courts held for purposes of State. 

' Stubbs, CharttrSy 147. 



86 CURIA REGIS. 

Chap. IV. The first point is that the Curia Regis was the great centre 
not only of business but of society. In an often quoted 
passage, the author of the Saxon Chronicle says of the Con- 
queror: 1" Thrice he wore his crown each year, as oft as he 
*' was in Endand. At Easter he bare it in Winchester, at 
" Pentecost at Westminster ; at midwinter at Gloucester ; and 
'' there were with him all the rich men over all England, 
" archbishops and diocesan bishops, abbots and earls, thanes 
" and knights." 

The following description of the Curia Regis is given by 
Madox, ^who has collected from various sources nearly 
every notice which can be found of the Court and its 
proceedings : — 

" At the King's Court, and more especially at some solemn 
" times of the year he held his great councils, and ordinarily 
'' transacted such affairs as were of great importance or re- 
'* quired pomp and solemnity according to the custom of the 
" times. There he was attended by his barons and knights 
*' who were to accompany him in his wars and expeditions. 
" There coronations, marriages, and knighthoods of the king's 
" children, and solemnities of great festivals were celebrated. 
" There was placed the throne or sovereign ordinary court of 
"judicature, wherein justice was administered to the sub- 
*' jects either by the king or his high justicier. There was 
" the conference of the nobility and prelates who used to be 
" near his royal person ; and there the affairs of the royal 
, " revenue were managed by the king himself or (most usually) 
*■' by his justicier barons and prelates employed therein by his 
" command. 

^ p. 294. The following passage from an early chronicler gives a vivid 
picture of the social side of a Court; — "Henricus Eex Junior" (the son of 
Henry II, ) "ad natale fuit a Bur Juxta Baiocum, et quia tunc primum tenebat 
" curiam in Normannia voluit ut magnifice festivitas celebraretur. Interfuerunt 
*' episcopi, abbates, comites,* barones, et multa multis largitus est. Et ut 
** appareat multitudo eorum qui interfuerunt, cum Willermus de San etc 
** Johanne Normannise procurator et Willermus Filius Hermonis senescallus 
" Britannise qui venerat cum Gaufrido duce Britannise domino suo come- 
*' deruntin quadam camera, prohibuerunt ne quis miles comederet in eadem 
" camera, qui non vocaretur Willermus, et ejectis aliis de camera remanserunt 
"• 117 milites qui omnes vocabantur Willermi exceptis plurimis aliis ejusdem 
" nominis qui comederunt in aula cum rege." (R. de Monte. 520.) See too 
Froissart's account of the Court of the Count of Foix in the third volume of 
the Chronicles. 

' Hist. Exch. i. p. 1-153, chapters i. ii. iii. See also Stubbs, Cons. Hist. i. xi. 



k 



CURIA REGIS. Sy 

" This may serve for one view of the King's Court. To Chap. IV. 
" vary the prospect, let us take a view of it another way. The 
" realm of England was anciently deemed one great seigneury 
*' or dominion, of which the king was sovereign or chief lord ; 
" having under him many barons or great lords, and many 
" knights and military tenants, besides soccagers, burgesses, 
'* and others. In order to survey the court of this chief lord 
*' of the regnum, or terra Anglise, we may consider him as 
" residing in his palace and surrounded by his barons and 
" officers of state. The baronage attending on his royal person 
'' made a considerable part of his court. They were his 
'' homagers. They held their baronies of him. He was 
*' their sovereign or chief lord, and they were his men as to 
" life, limb, and earthly honour. They were called Pares or 
'* Peers, as they were peers or convassales of his court, peers 
** to one another, and all of them liege-men to their chief lord 
'•' the king. As peers they had an immediate relation to his 
" court. In that respect they are styled his fdeles and fami- 
" Hares, his liege-men and domestics, and harones ciirice regis. 
" With them the king consulted in weighty affairs, and did 
*' many solemn acts in their presence and with their concur- 
"' rence. They or such of them as ordinarily attended in the 
" King's Court, by his command were (together with some 
'' of the bishops and prelates) concerned in managing the 
*' affairs of the revenue and in distributing public justice in 
*' causes brought into the King's Court: and came in process 
" of time to be called the conciliarii or concilmm regis, the 
" King's Council, and some of them held and executed the 
" respective ministeria, or great affairs of the King's Court." 

Another point which ought not to be forgotten in relation 
to the King's Court is its migratory character. The early 
kings of England were the greatest landowners in the country, 
and besides their landed estates ^they had rights over nearly 
every important town in England, which could be exercised 

^ " In Hereford in the time of Edward the Confessor, for instance, when 
" the kin^ went to hunt, one person went from each Ijouse to the stand or 
" station in the wood. Other tenants not havinj^ entire niasures found threo 
" men to guard tlio King when he came into the city." " Six smiths made 
" 120 nails from the King's iron." Tliere were seven moneyors, and "when 
" the King came to the eity they were l)ound to coin iis much of his silver 
" into pence as he demanded." — Ellis's Inlroduction to Domesday, ii. 1^6. 



88 



MIGKATORY CHARACTER OF CURIA REGIS. 



Chap. IV. only on the spot. They were continually travelling about 
from place to place, either to consume in kind part of their 
revenues, or to hunt or to fight. ^ Wherever they went the great 
officers of their court, and in particular the Chancellor with 
his clerks, and the various justices had to follow them. 
The pleas, so the phrase went, " followed the person of the 
" king," and the machinery of justice went with them. 

Two remarkable illustrations of this feature in the old 
courts and of their consequences to suitors may be given. 
Sir Thomas Hardy has prepared from the Patent Rolls an 
ephemeris of King John's reign, from which it appears that 
between May 23 and the end of December, 1213, his move- 
ments were as follows : — May 23, Ewell • 26, Wingham ; 28, 
Dover ; 30, Wingham ; June 3, Chilham ; 5, Gspring ; 6, 
Eochester; 10, Ospring; 11, Chilham; 13, Battle; 16, Por- 
chester ; 17, Bishopstoke ; 21, Corfe ; 25, Camford ; 27, Beer 
Regis ; 29, Corfe ; 30, Bishopstoke. In July he was in Dor- 
chester. In August, amongst other places, at Marlborough, 
Clarendon, Winchester, and Northampton. In September 
at Nottingham, Southwell, York, Darlington, Durham, 
Knaresborough and Pontefract. In October at Westminster 
Rochester, and Clarendon, and in the course of November 
and December at Oxford, Gloucester, Reading, Guildford, 
St. Albans, Waltham, and the Tower. On Christmas Day 
he was at Windsor. He was then at the Tower again, and 
on the 30th December again at Waltham. 

The effect of this mode of life upon the suitors and the 
administration of justice is shown by the ^ history of the 
plea of Richard d'Anesty in the King's Court. It begins 
'* These are the costs and charges which I, Richard de Anesty 
" bestowed in recovering the land of William my uncle," and 
it proceeds to enumerate the various journeys which he took 
to get writs, to get " days " given him by the king and the 
justices, and to keep the days so given. The history fills 

^ So late as the year 1300 it was enactied (28 Edw. 1, c. 5) that the Chan- 
cellor and the Justices of the King's Bench should " follow him so that he 
' * * may have at all times near unto him some sages of the law which be able 
*' only to order all such matters as shall come unto the Court at all times 
*' when need shall require." Indian magistrates and commissioners on tour in 
their districts and divisions are at times followed by pleas like the early 
English kings. . ^ Palgrave, Commomvealth, ii. ix. — xxvii. 



THE PLEA OF d'ANESTY. 89 

nearly nineteen 4to pages. The litigation lasted more than Chap. IV. 
five years (1158-1163). It involved journeys by d'Anesty and 
others to the following amongst other places, Normandy, Salis- 
bury, Southampton, Ongar, Northampton, Southampton, 
Winchester, Lambeth, Maidstone, Lambeth, Normandy, 
Canterbury, Avinlarium (supposed by Sir F. Palgrave to 
be Auvilar on the Garonne), Mortlake, Canterbury, London, 
Stafford, Canterbury, Wingham, Rome, Westminster, Oxford, 
Lincoln, Winchester, Westminster, Rumsey,^ Rome, London, 
Windsor, and at last Woodstock. The principal question 
in d'Anesty's case was whether a marriage was void 
by reason of a precontract. This was regarded as a 
matter of ecclesiastical cognisance, and involved questions 
in the spiritual courts and an appeal to Rome, but the 
diflfereint steps in the case strongly illustrate the meaning 
of " following " a plea. Here is a specimen of the narrative. 
^ " After I had fined with the King, my Lord Richard de 
" Lucy by the king's precept gave me a day for pleading 
" at London at mid-Lent ; and there was then a Council ; and 
" I came there with my friends and my helpers ; and because 
" he could not attend to this plea on account of the king's 
" business I tarried there for four days and there I spent fifty 
" shillings. From thence he gave me a day on the clause of 
" Easter, and then the King and my Lord Richard de Lucy 
*'' were at Windsor; and at that day I came with my friends 
*' and helpers as many as I could have. . . And because my 
" Lord Richard de Lucy could not attend to this plea on 
" account of the plea of ^ Henry de Essex, the judgment was 
" postponed until the King should come to Reading, and at 
" Reading in like manner it was postponed from day to day 
" until he should come to Wallingford. And from thence 
" because my Lord Richard was going with the King to Wales, 
" he removed my plea into the court of the Earl of Leicester 
" at London ; and there I came .... and because I could not 

^ The Pope had directed his first writ to the Bishop of Chichester nnd the 
Abbot of Westminster, of which tlie King di8a^)proved, requiring one directed 
to himself. D'Anesty sent a messenger for it, "and in that journey the 
" messenger spent fifty shillings." 

^ P. xxii. 

' This is the trial of Henry de Essex for treason. It is referred to in Mr. 
Carlyle's Pail and Present. 



90 DIVISION OF CURIA REGIS. 

Chap. IV '' get on at all with my plea I sent to the Lord Richard in 
" Wales to the end that he might order that my plea should 
" not be delayed ; and then by his writ he ordered Ogerus 
" Dapifer and Ralph Brito that without delay tliey should 
" do justice to me : and they gave me a day at London. I 
" kept my day. . . . From thence my adversaries were sum- 
" moned by the king's writ and also by the Lord Richard's 
" writ that they should come before the king : and we came 
" before the king at Woodstock and there we remained for 
" eight days, and at length, thanks to our lord the king and 
" by judgment of his court, my uncle's land was adjudged 
" to me." The history concludes with an account of the money 
which Anesty had to borrow from Jews for the expenses — 
mostly travelling expenses — of his plea, usually at the rate 
of a groat a week for the pound, which is nearly 87 per cent, 
per annum. 

The King's Court which led this wandering life, and which 
at intervals brought together all the most powerful and 
brilliant members of the community, had its standing officers 
and organisation. It was divided into two great departments, 
the Curia Regis and the Exchequer, which may be compared 
to the different sides or departments of one court. In the 
Curia Regis justice was administered, matters of state were 
debated, and public ceremonials of all kinds were celebrated. 
In the Exchequer were managed all affairs relating to the 
revenue. ^It seems to have been stationary, at least many 
of its officers were stationary, and the treasure itself was kept 
in one place. The Exchequer had an organisation of its own 
w^hich I need not describe. The two departments however 
were intimately connected. All the great officers of the 
Curia Regis had seats in the Exchequer and were described 
as Barons of the Exchequer. Moreover the administration 
of justice, particularly the functions of the Justices in Eyre, 
not only contributed largely to the revenue by fines and 
amercements but were the means by which some branches 
of the revenue were collected. Hence the Curia Regis and 
the Exchequer, though separate in name, and to some extent 

1 See the Dialogus de Seaccario, printed in Madox, vol. ii., and also in 
Stubbs's Select Charters. 



\ 



CUEIA REGIS AS A CRIMINAL COURT. 9 1 

different in their functions may be considered as forming Chap. IV. 
collectively one great institution. 

^ The great officers who held the most conspicuous places 
both in the Exchequer and in the Curia Regis were seven 
in number, namely the Chief Justiciar, the Constable, the 
Marshal, the High Steward, the Chamberlain, the Chancellor, 
and the Treasurer. Besides them there were an indeter- 
minate number of justices distinguished by no particular 
title. 

"The Chief Justiciar was the first and greatest officer 
" of the King's Court." " When the king was beyond sea 
"he governed the realm like a viceroy." "Next to the 
" king he presided in the Curia Regis as chief judge both 
" in criminal and civil causes." "He presided likewise in the 
" King's Exchequer, having the superior care and guidance 
" of the Royal Revenue." 

This great office was held by ^ Odo of Bayeux and William 
Fitz Osborne under the Conqueror, by ^William Flambard 
(for many years) under William Rufus, by Roger of Salis- 
bury under Henry I., by Richard de Lucy under Stephen 
and Henry II., and by Ranulf de Glanville also in Henry 
II. 's time. The last of the Chief Justiciars was Hubert de 
Burgh in the reign of Henry III. 

In the Curia Regis the Norman kings exercised as 
well in criminal as in civil cases, the original and appellate 
jurisdiction which had been perhaps the greatest of the 
prerogatives of their predecessors, and many trials of the 
greatest importance took place in it. For instance, 
*Waltheof was condemned to death at the court held at 
Westminster by the Conqueror at Christmas 1074. 

^In 1096 William Rufus held his Court at Windsor. 
" There Godfrey Bainard accused William de Ou, the king's 
" kinsman, of treason and vanquished him in single combat ; 
" whereupon the king commanded William de Ou to be 
" blinded and otherwise mutilated, and his dapifer (one 
" William by name) to be hanged ; and there Euda, Count 

1 Madox, Hist, Exch. chap. ii. pp. 80—80. ^ Ih. p. 31. 

» lb. p. 32. * Stubbs, i. 871. 

» Mad. i. 89, quoting Hoveden and Saxon Chronicle. 



92 COURT OF COMMON PLEAS. 

Chap. IV. " of Champagne, the king's son-in-law, and many others 
" were deprived of their lands, and others were taken to 
" London and there executed/* ^In the reign of Henry I. 
the famous Robert Belesme was tried in the King's Court 
upon no less than forty-five charges of outrages of various 
kinds. 

2 In 1184 (30 Hen. 2) Gilbert de Plumtun Knight was 
accused before the king by Glanville the high justiciary of a 
rape, and, according to Hoveden, would have been hanged if 
the king had not pitied him, suspecting Glanville's motives. 

Other instances are to be seen in Madox of the exercise 
of the jurisdiction of the Curia Regis. I will now pro- 
ceed to trace the steps by which nearly all the most im- 
portant of onr existing courts of justice were derived from 
it. The industry of Madox ^has collected evidence that the 
expression " Common Bench " or " Bank " is older than 
the reign of King John, and it is highly probable that 
some distribution of the business of the Curia Regis whereby 
civil actions might be assigned to one division of the court 
might take place during the reign of Henry II., when its busi- 
ness increased so much, and when the spirit of judicial and ad- 
ministrative reform was so active ; but however this may be, 
there is no doubt that a great and indeed decisive step in this 
direction was made by the 17th Article of Magna Charta 
in 1215, which is in these words, " Communia placita 
" non sequantur curiam nostram sed teneantnr in aliquo loco 
" cetto." The reasons of this enactment, and the evils which 
it was intended to remedy are sufficiently illustrated by the 
account already given of the plea of de Anesty and of the 

^ Mad. i. 93 ; Stubbs, i. 371. Eobert de Belesme is one of the most pro- 
nimdnt characters in the history of Ordericus Yitalis, and his career supplies 
an excellent specimen of the sort of disorders which the royal power had at 
that time to deal with. 

^ Eodem anno cum Gilbertus de Plumtun miles nobili prosapia ortus 
ductus esset in vinculis usque Wigorniam et accusatus esset de raptu coram 
Domino Rege a Ranulfo de Grlanvilla Justiciario Anglise, qui eum condem- 
nare volebat, injusto judicio judicatus est suspendi in patibulo, &c. Eex 
pietate commotus consilioqne suorum prsecepit sic (custoditum) eum mane re 
donee ipse aliud de eo fieri prsecepisset. Sciebat enim quod per invidiam 
fecerat hsec illi Ranulfus de Glan villa, qui eum morti tradere volebat propter 
uxorem suam, &c. Sic itaque miles ille a morte liberatus usque ad obitum 
regis fuit incarceratus per R. de Glanvilla. Hoveden, quoted by Madox, 
i. 20. 

3 Hist. Exch. v&l. i. chap. xix. pp. 787—801. 



i 



COURT OF king's BENCH. 93 

travels of King John. This was the origin of the Court of Chap. IV. 
Common Pleas which from that day to this (1882) has been 
held in Westminster Hall.^ 

The Court of Exchequer was always, as I have already 
observed, to some extent separate from the rest of the Curia 
Regis, and was also to some extent stationary. It gradually 
became a separate court. 

The Court of King's Bench represented so much of the ordi- 
nary jurisdiction of the Curia Regis as was not appropriated 
to the Common Pleas and the Exchequer. It had no definite 
known beginning as a separate institution, but the following 
points in relation to it may be noticed. The name " Curia 
Regis " begins, according to Madox, to cease to be used in the 
Records after the enactment of Magna Charta, and the pleas 
which would have been described as being held in the Curia 
Regis are said to be held coram ipso rege. This form of 
expression corresponds to the style which belonged to the 
Judges of the Court of Queen's Bench down to its abolition, 
" the Justices of our Lady the Queen assigned to hold pleas 
"before the Queen herself" It also corresponds to the 
singular ^ legal fiction which supposed the king to be in 
some mystical way personally present in the Court of 
Queen's Bench (it may be in all the superior courts) which 
was the reason assigned for the extreme severity with which 
contempts of such courts might be punished. 

It is also to be observed that Hubert de Burgh, the famous 
minister of Henry III., was the last person who held the 
office of Chief or High Justiciar. The powers of the office 

^ Madox observes that even after Magna Charta there were some excep- 
tions to the rule which it laid down, but these are of no practical importance, 

* •* However, it is certain that by the common law which continues to 
" this day, striking in Westminster Hall, where the king is only present as 
" represented by his judges and by their administration, distributing justice 
** to his people, is more [lonal than any striking in another place in his actual 
'• presence ; for the latter is not punished with the loss of hand unless some 
♦' blood is drawn, nor even then with the loss of lands or goods ; but if a 
" person draw his sword on any judge in the presence of the Court of King's 
•♦Bench, Chancery, Common Pleas, or P^xchequer, or before the justices 
'* of assize, or oyer and terminer, whether he strike or not ; or strike a juror, 
" or any other ncrson with or without a weapon, he shall lose his hand and 
«♦ his goods, and the profits of his lands during his life, and suffer perpetual 
" imprisonment, if tne indictment lay the offence as done coram domino 
'' regc." 1 Hawkins, p. G2 (edition of 1824), and see on this subject K. v. 
Lord Thanet and others. 27 StaU Trials, 822. 



94 QUEEN S BENCH DIVISION OF HIGH COURT. 

Chap. IV. indeed were so exorbitant that they were too great for a 
subject, and it is a not improbable conjecture (though there 
seems to be a complete absence of positive historical evidence 
on the matter) that the offices of Lord Chief Justice of the 
King's Bench, Lord Chief Justice of the Common Pleas, 
and Lord Chief Baron of the Exchequer were instituted in 
order to discharge the different duties which had formerly- 
belonged to the Chief Justiciar. The exact date at which 
these changes were made is uncertain,^ but the three courts 
were distinguished from each other before the accession of 
Edward I. The lists of the Chief Justices of the King's 
Bench and the Common Pleas, go back to the begin- 
ning of the reign of that king. The lists of the Lord Chief 
Barons to the middle of the reign of Edward 11. 

We have thus arrived at the Court of King's Bench. 
From the reign of Edward I. to the year 1875 it continued 
to be the Supreme Criminal Court of the Realm, with no 
alterations in its powers or constitution of sufficient import- 
ance to be mentioned except that during the Commonwealth 
it was called the Upper Bench. 

In 1875 the Judicature Act of 1873 was brought into 
operation, and the Courts of Common Law and of Equity, 
all of which had been originally derived from the Curia 
Regis, or the powers of one of its members, the Lord Chan- 
cellor, were reunited under the name of the High Court of 
Judicature. The Court of Queen's Bench thereupon lost 
its ancient title, which however survives in the name of 
the Queen's Bench Division, and its Chief Justice became 
the Lord Chief Justice of England, a title which almost 
literally reproduces that which was borne by Lucy, Glanville, 
and de Burgh. The High Court of Judicature, and more 
particularly the Queen's Bench Division of that Court, 
is thus the representative of the Curia Regis in its capacity 
of a Court of Criminal Justice. It will be interesting to 
enumerate shortly the particulars of the jurisdiction which 
it thus inherits. 

In the first place the Curia Regis had original jurisdiction 
in all cases whatever. The same is the case with the High 
1 Stubbs, Cons. Hist, ii. 266-7. 



\ 



HIGH COURT AND CURIA REGIS. 95 

Court of Judicature. There is no offence, from the most Chap. IV. 
serious to the most trivial, from high treason to a petty 
assault, which the High Court is not competent to try. 

In the second place the High Court has succeeded to what 
I have described in general terms as the appellate jurisdic- 
tion of the Curia Regis. This jurisdiction is of two kinds. 
The High Court may issue, hear, and determine (subject 
to a further appeal to the House of Lords) writs of 
error. A writ of error is an order for the production of the 
record of proceedings before an inferior court founded upon an 
allegation on the part of a person aggrieved, that the record 
will show that the proceedings were erroneous, for which 
reason they ought to be quashed. This proceeding in the 
present day affords a mode of trying questions of law rela- 
tive to procedure, but not questions as to the correctness of 
the judge's direction to the jury or as to the admissibility of 
evidence, or as to errors of fact committed by the jury. 

In the third place the High Court may in its discretion 
issue a writ of certiorari, by which it can direct any inferior 
court to send to the High Court any indictment which may 
be found before the inferior court, in order that it may be 
tried either before the High Court or before a judge of the 
High Court either in London or on the circuit. This power 
is in some particular cases regulated by statute, but it is 
perfectly general, and is in continual use in cases in which for 
any reason a trial in the ordinary course appears likely to be 
unsatisfactory. 

The writ of error and the writ of certiorari are both as old 
as the common law, and their very form and the nature of 
their contents distinctly show that they are the stated esta- 
blished way of exercising that superintendence over inferior 
courts, which, as I have pointed out, formed one of the most 
important branches of the Royal Prerogative ages before the 
Norman Conquest, and was exercised by the Curia Regis 
after that event and down to the time of the institution 
of the Court of King's Bench. 

It is a curious question, though perhaps the solution would 
not be worth the trouble necessary to .arrive at it, how far, at 
different periods of its history, the Court of King's Bench was 



96 CRIMINAL JURISDICTION OF HIGH COURT. 

Chap. IV. ^^ practice as well as in theory a court for the trial of common 
criminal cases. Till the year 1872 the grand jury of Middle- 
sex used to be summoned every term, but indictments were 
so very seldom preferred before them, that in that year an Act 
(35 & 36 Vic. c. 52) was passed providing that it should no 
longer be necessary to summon the grand jury unless the 
master of the Crown Office has notice of bills to be sent 
before them, in which case they may still be summoned. It 
has been usual to present such bills in cases of great public 
interest and importance only. The last instance of the kind 
which occurs to me was the prosecution of Governor Eyre, in 
1866, for misdemeanour in sending Mr. Gordon for trial to 
Morant Bay, in Jamaica, in order that he might be tried 
before a Court-martial. Criminal cases are not very un- 
frequently removed by certiorari into the High Court, and 
tried at the sittings at Nisi Prius; but these are almost 
always misdemeanours partaking more or less of the charac- 
ter of private wrongs, as indictments for libel, conspiracy 
to defraud, or the like. Proof, however, still exists that in 
ancient times the criminal business of the Court was exceed- 
ingly important, and came from all parts of England. In the 
Second Appendix to the Third Report of the Deputy Keeper 
of the Public Records (Sir F. Palgrave) are a considerable 
number of calendars and records, showing the amount of 
criminal business done in the Court of King's Bench in 
various terms between 1477 (17 Edw. 4) and 1547 (37 Hen. 
8). It appears from these that the Court was largely occupied 
at that time by trying all sorts of criminal cases arising in 
every part of the country. To give a few instances. In 
Trinity Term, 1477 (April 29 to June 20), sixteen writs of 
certiorari issued, to bring up for trial cases which had occurred 
in other parts of England. Of these four were murders 
from Stafford, Warwick, Nottingham, and London, respec- 
tively. There were five cases of robbery, two complicated with 
forcible entry; two forcible entries; a conspiracy; two thefts, 
and two assaults. In Easter Term, 1501 (16 Hen. 7), 
twelve cases were brought into court by certiorari, including 
cases of theft, burglary, riot, and forcible entry. It thus 
appears that the criminal trials held in the Court in those 



COURTS OF ASSIZE. 97 

days must have formed a considerable branch of its business. Chap. IV. 
Those trials which were held in the term were as they still are 
called trials at Bar. Those which were held after term and put 
in a list with civil causes were said to be tried at Nisi Prius. 



^THE COURTS OF ASSIZE. 

I come now to consider the history of the Courts of Assize. 
These courts are not so much derived from, as of equal anti- 
quity with the Curia Regis, and appear to me to be the 
means by which the king exercised that concurrent juris- 
diction with the County Courts which, as I have already 
observed, formed one of the most important and ancient 
branches of his prerogative. This concurrent jurisdiction 
seems from the very first to have been exercised most 
frequently not by calling the suitors to the King's Court, 
but by sending representatives of the King's Court to 
preside in the local tribunal. The king himself- in very 
ancient times, as appears from the instances already given, 
sat on particular occasions in the County Court, but it 
is natural to suppose that he would more frequently dele- 
gate such a function to others. Sufficient evidence to show 
that in fact he did so is still in existence. ^Mr. Stubbs men- 
tions many persons besides the chief Justiciars who acted 
as " Justiciarii," during the reign of Henry I. and other in- 
stances are mentioned by Madox. ^Thus: — " In the year 
" 1124, the King (Henry I.) being in Normandy between St. 
" Andrew and Christmas, Ralf Basset and the King's thanes 
" held a council of the nobles at Hundhoge in Leicestershire 
"and caused execution to be done on many malefactors." 
The Pipe Roll of 1130 mentions (according to Mr. Stubbs) ten 
justices of whom Ralph and another Basset were two. These, 
liowever, are matters which need not detain us, as Bracton 
in his third book gives an account of the office of the justiciar 

^ Dig. Crim. Proc. art. 23. 

'^ Stubbs, Cons. Hist. ii. 388-9, 

3 Madox, i. 12. Quoting from Hoveden. *' suspenderunt ibi tot fares quot 
" antea nunquam scilicet in i)arvo teniporis spatio omnino quatuor ct 
" (piadraginta viro.s, sex item viros privarniit oculia et testiculis, adniodum 
" gravis iuit hie annus." 

VOL. 1. H 



98 JUSTITIARII OF CURIA REGIS. 

Chap. IV. in the reign of Henry III. so full and precise as to render 
any other authority superfluous. 

1 He mentions as distinct the " Aula regia," and its " Justi- 
" tiarios capitales qui proprias causas regis terrainant," and 
the " curiam et justitiarios in banco residentes," but upon 
the whole it appears from his work that whatever special 
titles they might have on particular occasions, the justices 
were a body of royal officers of uncertain, or at least, of 
unspecified number, who were capable of being and habitually 
were employed upon a great variety of different duties ac- 
cording to the commissions directed to them from time to 
time. After giving many different forms of writs he concludes 
thus : 2 " Et infiniti sunt casus et formse infinita3 quibus con- 
" stituuntur justitiarii, secundum quod inferius videri poterit 
" in multis locis. Sed hsec ad prsesens sufficiant exempli 
" causa." He gives many forms of the commissions which 
were issued to particular justices in particular cases. The 
king, he says, ^ *' Habet justitiarios itinerantes- de comitatu 
" in comitatum quandoque ad omnia placita, quandoque ad 
" qufedam specialia, sicut assisas novae disseisinae et mortis 
" antecessoris capiendas, et ad gaolas deliberandas, quandoque 
" ad unicam vel duas et non plures" (causas). In * another 
place he says that the power of the justices depends on their 
commission, but that it is complete in regard to the whole 
of the cause or causes to which the commission extends down 
to judgment and execution. Various forms of writs are given 
which invest the justice with a jurisdiction more or less 
extensive according to circumstances. ^ In one case the words 
are, ''Ad itinerandum per comitatum talem, vel comitatus 
" tales A. de omnibus assisis et placitis tam corona3 nostrse 
" quam aliis." In another the power is limited to the pleas, 
" quse emerserint postquam justitiarii nostri ultimo itiner- 
" averunt in comitatu illo." In some cases the commission 
would authorise a goal delivery, in others not. 

^ See Bracton, De Legibus, iii. {De Actionibvs) vii. 2 {De diversitate Justi- 
tiariorum) vol. ii. pp. 160—207 in Sir H. Twiss's edition. 2 p_ 2O6. 

3 P. 160, and see p. 180, where this is repeated in substance. 

* "Est autem eorum potestas quod ex quo lis commissa est causa una vel 
" plures licet simpliciter extenditur eorum jurisdictio ad omnia sine quibus 
" causa terminari non potest, quantum ad judicium et executionem judicii." 
—v. 182. ^ P. 184. 



1 



JUSTICES IN EYRE. 99 

It is, I think, commonly supposed that the Court of the Chap. IV. 

Justices in Eyre, first brought into prominence by Henry II. 

though not originally established by him, was a special insti- 
tution differing in kind from the courts of the other 
justices.^ I think that this view is mistaken, and that 
it has introduced an appearance of confusion and ob- 
scurity into what is really a simple matter. There was never 
any standing institution, known as the Court of the 
Justices in Eyre or the Court of the Justices of Gaol 
Delivery. The difference lay in the commissions which 
the king issued in different terais to the same persons 
as occasion required. From the very earliest period of 
English history the king exercised his prerogative of justice 
locally by the agency of commissioners authorised to try 
particular causes or classes of causes in particular places. 
The cases to be tried and the local limits of the juris- 
diction were determined by the terms of the commission. 
These commissions were issued by the Conqueror and his 
sons, and by Henry II. his sons and grandson to their 
"justitiarii," just as they are issued by Her Majesty 
in the present day to the Judges of the High Court of 
Judicature. At the present day the judges act under 
three, commissions (Assize and Nisi Prius, Oyer and 
Terminer, and Gaol Delivery) if Civil as well as Criminal 
business is to be taken at the Assizes ; under two only 
(Oyer and Terminer and Gaol Delivery) if all criminal 
business is to be taken ; and under one only (Gaol 
Delivery) if a particular gaol is to be delivered, but 
prisoners on bail arc not to be tried. In the days of 
Henry I., Henry II., and Henry HI., the authority of the 
justice was limited by the extent of his commission in pre- 
cisely the same manner. As to the eyre, every justice deputed 
to a particular place was " in eyre," or as we should say, 
" on circuit." No doubt there were justices who by way 
of pre-eminence were described as the Justices in Eyre, and 
there can also be no doubt that Henry 11. first systematised 

' Sec c.(j. fourth IvMitute, cli. 27, 28, 30, 33, 34. There in a full liistory 
of all matters connected • with the (Courts of Assize in the judgment of 
Willos .1., ex pnrtc Fernandez, 10 C.Ji., N.S. 42-67. 

II -2 



loo ORIGIN OF CIRCUITS. 

Chap. iV. these eyres, and divided the country into circuits each of 
which was allotted to one set of judges, and he may thus 
be described as the founder of the system of circuits. He 
was not, however, the founder of the system of the local 
administration of justice by Eoyal Commissioners appointed 
to take Assizes, to hear and determine pleas, and to deliver 
gaols. This system was probably as old as the doctrine that 
the king is the fountain of justice. That it was older than 
the establishment of the circuits is certain. The establish- 
ment of the circuits is usually dated from 1176, ^when 
4 Henry II. divided the country into six parts and appointed 
eighteen itinerant justices for them, but ^Madox quotes 
from the Exchequer Rolls a long series of the names of 
justices errant from 1170, of whom some were appointed 
" for pleas of the Crown or common pleas, and for imposing 
" and setting the assizes or tallages on the king's demeans," 
and others " for pleas of the Crown and common pleas " only. 
Moreover the lanmiage of the Assize of Clarendon (1166) 
implies that in all parts of England justices either came 
(no doubt on circuit and with commissions of gaol delivery 
or oyer and terminer), or were accessible at short intervals. 
After providing for the arrest of robbers and murderers, the 
Assize goes on to say, that when persons are arrested for 
robbery or murder, "if the justices are not to come soon 
" into the county in which the prisoners are in custody, the 
" sheriffs are to send to ^the nearest justice by some intelligent 
" person to say that they have taken such prisoners, and the 
" justices are to send back to the sheriffs to say where they 
" wish the prisoners to be brought before them, and the 
" sheriffs shall bring them before the justices." This implies 
that even if it was not intended to send justices into any 
given county at a particular time, there would always be a 
justice in the neighbourhood, and this implies that at least 
ten years before the institution of regular circuits, the practice 

1 "Communi omnium concilio divisit regnum suum in sex partes ; per 
** quarum singulas tres justitiarios itinerantes constituit quorum nomina hsec 
" sunt, &c." — Hoveden, quoted in Madox, Ex. i. 18, and see 1 Stubbs, Gmis. 
Hist. 602. 

2 i. 123-140. 

3 The words sue propinquiori jiLstitice (in the singular)' in this phrase. 



COMMISSIONS OF EYRE. 



lOI 



of issuing commissions for the local administration of criminal 
justice by the king's justices was common.- 

The great peculiarity of the circuits, established by Henry II., 
and continued for a great length of time after his death, was 
the multiplicity of business imposed upon the justices. 
They were not only to dispose of the civil and criminal liti- 
gation of their circuit, but to preside over many branches of 
the king's revenue, and see to the enforcement and preserva- 
tion of all his rights. This is clearly shown by the articles of 
the general summons given in Bracton, whose ^ treatise "De 
" Corona " may be regarded as the foundation to a consider- 
able extent of English criminal law. '^A. general summons to 
sheriffs of the counties on the circuit was issued, requiring 
them to summon by good summoners all archbishops, bishops, 
abbots, priors, counts, barons, knights, and freeholders of 
their entire bailiwick, and of each vill four lawful men and 
the reeve, and of each borough twelve lawful burgesses 
" et omnes alios qui coram justitiariis itinerantibus venire 
** Solent et debent." In a word, the sheriff was to convene 
the full county court for the transaction of all the business 
committed to the justices. The first business done was the 
criminal business, according to a mode of procedure which I 
shall describe fully hereafter. After this, inquiry was to be 
made as to the king's wards, as to marriages, advowsons, 
escheats, serjeanties, purprestures (encroachments), measures, 
wines, franchises. Christian usurers, the chattels of Jews 
slain, coinage, outlaws, markets, new tolls, and a great many 
other particulars relating to the revenue and other rights of 
the king. ^ Their enumeration fills several pages of Bracton, 
and I think the only adequate way of describing them is by 
saying that their collective effect is to require the justices to 
undertake a general review of the whole administration of 
the country. The articles apparently were varied from time 
to time and to suit particular circumstances. 

''Thus Bracton gives the form of a summons, convening 
a Court at Shipwey, before justices for the liberty of 

1 2 Bracton, hy Twiss, p. 234-681. 

2 Seo the form, 2 Bracton, 188. 

' Pages 241-53 (lialf of them are an English translation by Sir T. Twins). 
< ii. 253. 



Chap. IV. 



^ 



I02 CHANGE FROM EYRES TO ASSIZES. 

Chap. IV. the Cinque Ports. It authorises them to inquire, amongst- 
other things, "de navibus captis in guerra et traditis, per 
" 1 Wil. de Wroteham, et quis illas habeat vel quid de illis 
" actum sit." 

What further process was to be had upon the returns made 
by the justices I am unable to say, as Bracton is silent on 
the subject ; but probably the records of the eyre would be 
made up and forwarded to the exchequer, and form the basis, 
or at all events part of the materials, for the strict account 
which, as appears from the Dialogue de scaccario, the sheriff 
of every county had to pass every year. T^iis, however, 
does not fall within my subject. 

It is enough for me to point out that, on the circuits insti- 
tuted by Henry II., and commonly distinguished as ''eyres" 
by way of pre-eminence, the administration of criminal 
justice was treated, not as a thing by itself, but as one 
part, perhaps the most prominent and important part, of the 
. general administration of the country, which was put to 
a considerable extent under the superintendence of the 
justices in eyre. Nor is this surprising when we consider 
that fines, amercements, and forfeitures of all sorts were 
items of great importance in the royal revenue. The rigorous 
enforcement of all the proprietary and other profitable rights 
of the Crown which the articles of eyre confided to the 
justices was naturally associated with their duties as adminis- 
trators of the criminal law, in which the king was deeply 
interested, not only because it protected the life and property 
of his subjects, but also because it contributed to his revenue. 

The transition from the eyres, described by Bracton, to 
the assize courts of our own days may still be traced. As 
I have already shown, the commissions under which civil and 
criminal justice was administered were distinct from the 
articles of the eyre, and were probably much more ancient. 
The eyres were converted into circuits, in our sense of the 

1 Sir T. Twiss says that he was a famous sea-captain and Keeper of the 
King's ports, who died in the second or third year of Henry III. He had 
been Archdeacon of Taunton in 1204, and was Keeper of the King's Galley 
during the reign of King John. Sir T. Twiss supposes the writ to have 
been the first issued to the barons of Hastings after the conclusion of the 
general war at the commencement of Henry III.'s reign. 



DISUSE OF EYRES. IO3 

word, simply by confining the commissions issued to the Chap. IV. 
justices to those which are still issued (assize and nisi prius 
for civil business, oyer and terminer and gaol delivery for 
criminal business), and by dropping the financial and adminis- 
trative matters contained in the articles of eyre. It would 
be a waste of labour to attempt to ascertain precisely by 
what steps this change was carried out, but the nature and 
reasons of the process are obvious in themselves and have 
left traces by which they are sufficiently explained. 

It is obvious that such an inquiry as would be necessary to 
execute fully the articles of eyre given in Bracton would be 
cumbrous in the extreme, and would be burdensome to the 
public in direct proportion to the degree in which it was 
profitable for the Crown. So obvious was this that the eyres 
became septennial early in the thirteenth century, and con- 
tinued to be so throughout the reign of Henry III. and into that 
of Edward I. In the Parliament Rolls a variety of references 
to the subject occur, which prove that the holding of the 
eyre was regarded as a great public burden. Edward III. 
and Richard II. upon the petition of the Commons agreed to 
suspend it on various occasions for a greater or less period. 
The following references suffice to prove this: — In A.D. 1348 
(22 Edw. 3), the Commons make it a condition of an aid 
for the war in France that ^ " Eyres des justices en le meen 
" temps, si bien des forestes come des communes Pleez et 
" general enquerrez par tote la terre cesse." The petition 
connected with this grant marks the distinction between 
financial and judicial business. " Que nul Eyre des Forestes 
" le roi ni de la roigne, ne de prince soit duraunt la guerre, 
" ne autres Eyres, n'Enquerrez fors la justice de la pees en 
" chescun pays de mesme le pays d'oyer et terminer come au 
" drein parlement estoit priez." The petition is continued on 
the same page. " Prie la commune que les commissions de 
" generals Enquerrez et tons maners des Eyres des justices 
" cessent de tut durant les trois aunz tan que I'eide a vous a 
" caste parlement grauntez soit levez." (Answer.) " II 
" semble cue conseil que tieux Enquerrez cessent en cese du 
" poeph; s'il plest au roi, si sodeigne necessite ne surveigne." 
' 2 Itot. Par. 200, a. 



104 DISUSE OF EYRES. 

Chap. IV. ^I" 1371 (45 Edw. 8), a petition was granted that the king 
"7"" would issue no commission of eyre or trailbaston during the 
war, " fors qe en horrible cas." ^ There is a similar petition in 
1377 (1 Rich. 2), that there may be no eyre nor trailbaston 
for the war, or for twenty years, but this was refused, ^and 
another in 1382 (6 Eich. 2) which was granted for two 
years. The fullest and most instructive notice of .the subject 
which I have found in the Parliament Rolls occurs in the 
* Parliament Roll of 1362 (36 Edw. 3). The Commons 
had asked for a general pardon of " all manner of articles 
" of eyre except pleas of land, quo warranto, treason, robbery, 
" and other felonies punishable by loss of life or member." 
The Council had said that they regarded the petition as 
prejudicial to the king, and the Commons thereupon explain 
that they did not wish the king to give up anything which 
would injure his Crown permanently, such as " escheats, 
" wardships, marriages, fees, advowsons, serjeanties, rents, 
" services, lordships," and many other matters, but that they 
wished him to pardon " trespasses, misprisions, negligences, 
" and ignorances " committed before the then parliament, and 
all " articles of eyre, the punishment of which would involve 
" fine or ransom or other money punishments, amercements 
" of counties and towns, and charges upon the heirs of 
" coroners, sheriffs, and other royal officers." ^ A general 
pardon, of all such articles of eyre was granted in 1397 (21 
Rich. 2). 

I have not taken the trouble to try to ascertain precisely 
the history of the gradual disuse of these commissions. In 
Coke's ^ fourth Institute, they are spoken of as things of the past, 
and in the first Institute it is said that ''' " as the power of the 
" justices of assize by many acts of parliament and other com- 
" missions increased, so these justices itinerant by little and 
" little vanished away." I think it much more probable that, 
as the king came to depend more and more upon parliamen- 
tary grants of money, and less and less on his land revenue 
and casual profits, the commissions of Oyer and Terminer, gaol 

1 2 Eot. Par. 305, a. '23 jiot. Par. 24, a, and see pp. 90-96. 
3 Jb. 138, b. 4 2 Eot. Par. 272, a, b. 

3 3 Rot. Par. 369. « Yomth Inst. 184. 

'' Co. Litt. 514. 



COMMISSIONS OF GAOL DELIVERY. IO5 

delivery, assize and Nisi Prius superseded the commissions chap. IV. 
containing fiscal articles. 

The history of the commissions of gaol delivery is as 
follows : Their origin is matter of conjecture. They are 
probably as ancient as the gaols ^themselves, and as the 
local administration of justi'ce by royal officers. At all 
events they are repeatedly mentioned by Bracton. The 
systematic periodical issue of such commissions was, how- 
ever, a consequence of the establishment of the periodical 
issue of Commissions of Assize. The word ''Assize" was 
used in a great variety of senses. In some cases it meant a 
law, as in the expressions " The Assize of Clarendon," " The 
" Assize of Jerusalem." It also meant a jury, as in the 
expression "The Great Assize," which is employed by 
Glanville, and to which I shall have to return. It also 
meant the form of action in which trial by a jury took place, 
as in the expression, "The Assize of Novel Disseisin," 
" The Assize of Mort d' Ancestor." These actions, which 
were mostly for the recovery of land or rights connected 
with land formed the most important part of the litigation 
of early times, and the first Commissions of Assize were 
commissions for the trial of such actions. They formed an 
independent part of the business of the justices in eyre, and 
were to be held much more frequently. ^It was provided by 
the 18th Chapter of Magna Charta, that the king or in 
his absence abroad his Chief Justiciar should send two 
justices into every county four times a year to take assizes 
of novel disseisin, mort d'ancestor, and darrein presentment. 
This, says ^ Mr. Stubbs, was in the following year altered to 
once a year. I am not aware of any enactment in very early 
times as to the degree of frequency with which assizes were 
to be held, but it was enacted by 13 Edw. 1, c. 30 (a.d. 
1285), '^ that they should be held three times a year at most. 
And in 1290, it was enacted by 27 Edw. 1, c. 3, that justices 

^ A gaol, proprrly speaking', i.s a ca^e. Seo 2 Palgi'ave'a Covimonivcalth, 
clxvi. The AHHize of Clurendon (cli. vii.) provi(l«;8 for the making of gaols 
■where they do not exist, the wood being provided out (jf the royal forests. 
See 8tul)})8'H Charters, p. 144. 

'■' StuM)8, Charters, 20J>. » Jh. 141. 

* " Capiiint ussisas predictas et attinctas ad plus ter per imninn." 



o6 



COMMISSIONS OF OYER AND TERMINER. 



Chap. IV. appointed to take assizes should also " deliver the gaols of 
*' the shires as well within liberties as without of all manner 
" of prisoners after the form of gaol deliveries of those 
" shires beforetime used." This statute shows that com- 
missions of gaol delivery were well known in 1299; and it 
would secure their being issued as often as the Commissions 
of Assize were issued according to the 13 Edw. 1, that is to 
say, not more than three times a year. 

The next statute relating to them is 2 Edw. 3, passed 
in 1328, which provides that ''good and discreet persons, 
*' others than of the places, if they may be found sufficient 
" shall be assigned in all the shires of England to take 
" assizes, juries, and certifications, and to deliver the gaols, 
" and that the said justices shall take the assizes, juries, and 
" certifications, and deliver the gaols at the least three times 
" a year, and more often if need be." 

From that time to the present commissions of gaol delivery 
have regularly been issued, and form one of the authorities 
under which the Judges of Assize now execute their office. 

The commissions of Oyer and Terminer are found in exist- 
ence at the same time as the commissions of gaol delivery, 
though I am not prepared to cite, either from Glanville or 
from Bracton, any instance in which the expression is used. 

The first express mention of them with which I am ac- 
quainted is in the statute 13 Edw. 1, c. 29 (a.d. 1285), which 
taken in connection with some subsequent authorities throws 
considerable light on their nature. They were either general 
or special. General when they were issued to commissioners 
whose duty it was to hear and determine all matters of a 
criminal nature within certain local limits, special when the 
commission was confined to particular cases. Such special 
commissions were frequently granted at the prayer of par- 
ticular individuals. They differed from commissions of gaol 
delivery principally in the circumstance that the commission 
of Oyer and Terminer was " ad inquirendum, audiendum, et 
" terminandum," whereas that of goal delivery is ^"ad gaolam 
" nostram castri nostri de C. de prisonibus in e^ existentibus 
'' hac vice deliberandam," the interpretation put upon which 
1 Fourth List. 161, 167. 



SPECIAL OYERS AND TERMINERS. 



107 



^ 



was that justices of Oyer and Terminer could proceed only c^ap. iv^ 
upon indictments taken before themselves, whereas justices of 
gaol delivery had to try every one found in the prison which 
they were to deliver. On the other hand, a prisoner on bail 
could not be tried before a justice of gaol delivery, because he 
would not be in the gaol, whereas if he appeared before justices 
of Oyer and Terminer he might be both indicted and tried. 

These differences, however, seem so slight and technical 
that I am inclined to think that the commission of Oyer and 
Terminer must originally have been used rather for special 
than for general purposes, and that it was granted in par- 
ticular cases to particular persons who had been injured by 
some special offence by an offender not arrested by the public 
guardians of the peace. It would be natural to give a 
general commission of this kind to justices of gaol delivery, 
in order that any such cases not brought before them in their 
other capacity of justices of gaol delivery might be disposed 
of at the same time. In later times such cases were usually 
dealt with by the Court of Star Chamber. 

This is suggested both by the statute 13 Edw. 1, c. 29, and 
by some later authorities. The words of the statute are " a 
" writ of trespass, to hear and determine, from henceforth 
" shall not be granted before any justices, except justices of 
" either bench and justices in eyre, unless it be for an heinous 
" trespass where it is necessary to provide speedy remedy, and 
" our lord the king of his special grace hath thought it good to 
" be granted." This of course implies that the practice had 
previously been different. The exception made in the statute 
left in existence if it did not introduce great abuses. This 
appears from a petition in the Parliament Rolls of 1315 
(thirty years after the statute.) 

The petiti(jn says : ^ " Great evils and oppressions against 
" law are done to many people by granting commissions of 
" Oyer and Terminer more lightly and commonly than is 
" proper against the common law. For when a great lord or 
" powerful man wishes to injure another, ho falsely accuses 
" liim of a trespass" {il forge trespas vers luy), "or maintains 
" some one else on whom he " (his enemy) "has trespassed, 

» 1 Hot. Par. 290, a. 



I08 ILLUSTRATIONS. 

Chap. IV. " and purchases commissions of Oyer and Terminer to people 
" favourable to himself and hostile to the other side, ^ who 
" will be ready to do whatever he pleases, and will fix a day 
" of which the other side will either receive no notice from 
" the sheriff and his bailiffs (who are procured to take part 
" in the fraud), or else such short notice that he cannot 
" attend ; and so he is grievously amerced, namely £20, or . 
" 20 marcs, or £10, at the will of the plaintiff. ^ And then 
" he has another day appointed him in some upland incon- 
" venient village in which his adversary is so powerful that 
" the defendant dares not go there for danger of his life, and 
" can have no counsel for fear of the same power. And thus 
" he is ^ fined three or four times the value of his chattels, 
" that is to say, a common man, *£26 for a day, or 100 marcs, 
" or £40, more or less according as the plaintiff is urgent " 
(postive). " And if the defendaat keeps his day, he will 
" either receive bodily harm, or he will have to agree to do 
" more than is in his power, ^or a jury from distant parts will 
" be procured which knows nothing of the trespass, by 
" which the defendant will be convicted of the trespass, 
" though he may not be guilty, and the damages taxed at the 
" will of his adversary, that is to say, for a trespass for which 
" 6 20d. would be enough at £200, £400, sometimes 1,000 
" marcs. And if the party convicted is caught" (trapee), "he 
" will be imprisoned, and remain there till he has paid every 
" penny, or till he agrees to sell his land ; or till his friends 
" pay, if he is ever to get out. And if he cannot be taken 
" he will be put in exigent and exiled for ever " (by being 
outlawed). 

The answer to this petition is : "As for writs of Oyer and 
** Terminer they shall for the future be granted only for 
" enormous trespasses" {pro enormis transgressionihus) " ac- 
" cording to the form of ^ the statute, and for this shall be 
** assigned justices -sworn discreet and not suspected." 

^ '* Se dorront a faire tut ceo qil voet." 

^ *' Et avera aultre jour en ville Duppelond ne mie convenable." 
^ " Mis as issues," fined for non-appearance and entered by the Sheriff on 
the roll, which led to the issue of a writ of distringas. See 2 Madox, 234. 
* xxvi. 11. 

^ " Ou serra procure une jure d'estrange pays qui rien soit du trespas." 
^ "xx sontz. ' Perhaps shillings. 7 ^- g^ 13 ^j^y^ i^ c. 2 9. 



J 



ILLUSTRATIONS. IO9 

Tliis petition sets in a striking light the occasional indivi- chap. IV. 
dual character of the administration of justice even at so late 
a period as the reign of Edward II., and the great oppressions 
incidental in those days to trial by jury. It clearly shows 
that the septennial eyres and the more frequent commissions 
of gaol delivery did not provide sufficiently for the administra- 
tion of criminal justice, especially as regarded offences which 
were regarded (to use the language of our own day) rather as 
torts than crimes. 

The subject is so curious that it may be well to illustrate 
it further by a few specimens of the cases in which after the 
petition referred to private commissions of Oyer and Terminer 
were issued. 

In the same Parliament in which the petition was pre- 
sented ^ certain persons were appointed justices of Oyer and 
Terminer, as to " all complaints which any one wished to 
" make of prises, ^carriages, and other trespasses done by 
" John de Segrave and his servants by reason of his custody 
" of the forest beyond Trent, and the castles of Nottingham 
'* and Derby." 

A similar commission ^was issued at the same time to 
different persons with reference to the conduct of Gerard de 
Salveyn, as escheator beyond Trent and sheriff of Yorkshire. 

In 1320 * (14 Edw. 2), Ralph de Draiton, the parson of 
the parish of Luffenham, asked for a commission of Oyer 
and Terminer, to inquire into the conduct of Robert de Veer, 
Simon de Draiton, and John de Clifton* who, he said, by the 
orders of Gilbert de Middleton, Archdeacon of Northampton, 
imprisoned him till he resigned his living, and took and 
carried away his goods and chattels, and cut out the tongue 
and pulled out the eyes of one Agnes de Aldenby, and he 
said that a commission had already been issued on the sub- 
ject at York. The answer is that the petitioner must produce 
the former commission in tlie Chancery where he will be 
answered. 

'"'In the year 1321 or 1322 Robert Power asks for a com- 

' 1 Rot. Par. 325, a. 

2 Taking supplies and compelling people to carry. 

3 1 Hot. Par. 825, b. * lb. 376, a. « Ih. p. 410, a. 



no SPECIAL COMMISSIONS OF OYER AND TERMINER DISUSED. 

Chap. IV. mission of Oyer and Terminer against various persons who, 
during the siege of Tickhill Castle, came to take him prisoner, 
and hold him to ransom, and destroyed a quantity of his pro- 
perty. The answer is " Adeat legem communem." 

Various other instances are given in the Parliament Rolls. 

The abuse complained of in the petition above quoted still 
continued, as appears from^ a petition presented in 1828 
(2 Edw. 3) complaining of the irregular and illegal conduct 
of one Robert de Scoresburgh, who was a Commissioner of 
Oyer and Terminer at Scarborough, on the writ of one Ali- 
sandr' de Berwiz. The petition was granted, and the result 
was the statute of 2 Edw. 3, c. 2, which enacts " that the 
" Oyers and Terminers shall not be granted but before jus- 
/' tices of the one bench or the other, or the justices errants, 
^' and that for great hurt or horrible trespass, and of the 
" king's special grace, after the form of the statute thereof 
'' ordained in time of the said grandfather, and none 
" otherwise." 

The result of this statute was that the criminal jurisdiction 
of the justices of assize and Nisi Frius was put on its present 
footing. They were to be commissioners of gaol delivery 
under 27 Edw. 1, and might be commissioners of Oyer and 
Terminer under 2 Edw. 3. The practice now is to issue both 
commissions to the judges on each circuit, though occasion- 
ally commissions of gaol delivery only are issued. 

Besides the ordinary commission of Oyer and Terminer a 
commission which, according to Coke, was a species of Oyer 
and Terminer, and which bore the odd name of ^ Trailbaston, 
was issued under Edward I., and some of his successors. Its 
form is given in 1 Bot. Par. 218-9 (35 Edw. 1, A.D. 1306). 
It tells us nothing except that certain justices were to " en- 
/' tendre les busoignes de traillebaston " on five circuits, 
including 38 counties. Certain articles are annexed to the 
commission, which look as if they were intended to define 
the duties of the justices. They read like a short abridg- 
ment of the articles of the eyre. 

1 3 Rot. Par. 28, h. 

2 Sir Francis Palgrave says that the word refers rather to the crime than to 
the court. A *' trailbaston " was a clubman, one who carried a bludgeon — 
the Indian " latthiar " — from "lathi " a club. 



TRAILB ASTON. I I I 

" Et qe vostre poyne aide et consail a tot vostre poair Chap. IV. 
dorrez et mettrez as droitures le Roi et de la Corone garder ~ 

meintenir sauver et repeler par la ou vous purroz sanz tort 
faire. Et la ou vous saverez les choses de la Corone et le 
droitz ' le E-oy concellez, ou a tort alienez, ou soustrez, qe 
* vous le frez saver au Roi. Et que la Corone arrestrez a 
' votre poair et en loais manere.' " 
The Commission says nothing of criminal jurisdiction, but 
Coke asserts that the Commissioners possessed it, and instances 
might be cited from the Parliament Rolls which support 
this. In 1347 -^(25 Edw. 3), the Commons petition that 
'' comunes Trailbastoneries ne courgent come autre foitz fut 
" assentuz en Parlement ; car eles furent tout a destruction 
'' et anientissement du Poeple et a moult petit ou nul amende - 
*' ment de la ley ou de la Pees ou punissement des felons 
'' ou tresspassours." 

The commissions of Trailbaston are mentioned in most of 
the passages already cited as to the remission of the eyres for 
a longer or shorter time, and the two were probably more or 
less closely connected. Whatever their nature may have 
been they have long since become obsolete, and inquiries into 
their nature have only an antiquarian interest. We have 
thus arrived at the establishment of the second of the ordi- 
nary superior criminal courts, the courts of the Justices of 
Assize. They can hardly be said to have had any later his- 
tory. Some small variations in the number of the circuits, 
and as to the places in which they were to be held, have 
been made especially within the last few years, but the 
circuits have altered but little, and the constitution of 
the Courts has hardly altered at all since the reign of 
Edward III. 



THE COURTS OF QUARTER SESSIONS. 

T now come to the history of the Courts of Quarter 
Sessions for counties. In order to explain their origin and 
constitution it is necessary to refer shortly to the origin of 

' 2 Rot. Par. 1/1. 



I I 2 CONSERVATORS OF THE PEACE. 

Chap. IV. ^^e office of Justices of the Peace. ^ Keeping the peace 

was one of the chief prerogatives of the Crown, and it was 

exercised both by some of the great officers of the Crown 
throughout England, and by sheriffs, coroners, and constables 
in their various counties and smaller districts. ^The judges 
of the Court of King's Bench were, and the judges of the 
High Court of Justice are, conservators of the peace all 
over England, and though a judge in the present day seldom 
if ever acts as a justice of the peace, it was customary for 
them to do so for centuries. When the Supreme Courts were 
first established in India, the judges were expressly made 
justices of the peace, and they used to sit as such regularly. 
Besides those who were conservators of the peace by virtue of 
their offices, there were evidently others who were elected f )r 
particular districts as coroners now are. At the beginning of 
the reign of Edward III., and no doubt in order to enable him, 
or rather his mother, Queen Isabel, and her advisers to keep 
order and support their authority, it was enacted in 1327 
(1 Edw. 3, c. 16) that "in every county good men and 
" lawful which be no maintainers of evil or barretors in the 
" country should be assigned to keep the peace." This put 
an end to the election of conservators, and was the beginning 
of the legislation relating to the officers who afterwards 
became justices of the peace. At first their authority was 
simply executive, being limited probably to suppressing dis- 
turbances and apprehending offenders, so that they were little 
more than constables on a large scale. Three years afterwards, 
in 1330, it was enacted (4 Edw. 3, c. 2) that there should be 
three gaol deliveries in every year, and that at the time of the 
assignment of the keeper of the peace " mention shall be made 
*•' that such as shall be indicted or taken by the said keepers 
" of the peace shall not be let to bail or mainprise by the 
" sheriffs," and that the justices of gaol delivery should 

^ Lambard, Eirenarcha, pp. 3-22. Lambard is the foundation of Blackstone 
(Book i. c. 9) and other writers. See also Dig. Crim. Proc. chap. v. arts. 
28—36. 

2 Lambard, fo. 13. As to judges acting as justices, see Campbell's Chief 
Justices, iii. 11 (life of Holt) ; and see Spencer Cowper's case, in which Holt 
took depositions, 13 State Trials, 1142. As to India, see 13 George 3, 
c. 63, s. 38. In Sir William Jones's Life, mention is made of his holding 
evening sittings as justice of the peace for Calcutta. 



JUSTICES OF THE PEACE. I I 3 

deliver the gaols of the persons indicted or taken by the Chap.tv. 
keepers of the peace. The powers of the keepers of the peace 
at this time therefore extended to receiving indictments. 

In 1344 (18 Edw. 3, st. 2, ch. 2) it was enacted that 
" two or three of the best of reputation in the counties shall 
" be assigned keepers of the peace by the King's Commis- 
" sion, and at what time need shall be the same with others 
" wise and learned in the law shall be assigned by the 
" King's Commission to hear and determine felonies and 
" trespasses done against the peace in the same counties, 
*' and to inflict punishment reasonably." This was the first 
act by which the Conservators of the Peace obtained judicial 
power. Apparently some of them were to be associated with 
the Commissioners of Oyer and Terminer and Gaol Delivery, 
but they were not themselves to form a complete court. 

In ^1350 the Statute of Labourers required the justices to 
hold sessions four times a year to enforce that statute. 

After a further interval of ten years, namely, in 1360, a 
statute was passed (34 Edw. 3, c. 1) which not only author- 
ised the keepers of the peace to arrest offenders, but gave 
them authority to " hear and determine at the King's suit 
" all manner of felonies and trespasses done in the same 
" county." Lambard conjectures that it was upon the passing 
of this statute that the Conservators of the Peace first ac- 
quired the higher title of Justices. He also says that some 
words in the beginning of the statute, " In every county in 
" England shall be assigned," &c., had the effect of providing a 
separate Commission for every county, a Commission for several 
counties having, at all events in earlier times, been given to 
particular persons. This statute is still the foundation of the 
jurisdiction of the Courts of Quarter Sessions for counties. 

In 1388 a further statute was passed fixing tlie number of 
justices at six for every Commission of the Peace, besides 
the Justices of Assize. They were to keep their sessions 
four times a year for three days if need be. The statute 
adds that if a judge of either bench or a serjeant-at-law is 
in the Commission, he is not io be required to sit as the 
other Commissioners, the which be continually dwelling in 

' 25 K«hv, 3, St. 1, c. 7 ; aiul sue 2 Hot. Par. 234. 
\ <.)L. I, I 



I 1 4 QUARTER SESSIONS FOR COUNTIES. 

Chap. IV. the country, but that " they shall do it when they may best 
" attend." Several later statutes are to much the same effect", 
though they have been interpreted as removing the restric- 
tion as to the number of justices. They are 13 Rich. 2, st, 1, 
c. 7, 2 Hen. 5, st. 2, c. 1 and c. 4, which last statute again 
prescribes the dates at which the sessions are to be held. 

Many statutes have been passed relating to various matters 
connected with justices of the peace, but the constitution of 
the ^ Court of Quarter Sessions has never been materially 
altered from its first establishment to the present day. The 
time at which it is to meet is now regulated by 11 Geo. 4, 
and 1 Will. 4, c. 70, s. 35. 

The jurisdiction of the Court depends partly on statute and 
partly on the Commission issued under the earlier statutes, 
2 the form of which was first settled in Michaelmas Term, 
1590, by Lord Chief Justice Wray and the other judges, and 
which has been in use ever since, though some of its terms 
are sufficiently antiquated. ^It provides that the justices 
are to " hear and determine all felonies, poisonings, enchant- 
'* ments, sorceries, arts magic, trespasses, forestallings, re- 
" gratings, engrossing, and extortions, and all other crimes 
'' and offences of which such justices may or ought lawfully 
" to inquire," subject to this caution, " that if a case of diffi- 
" culty shall arise they shall not proceed to give judgment 
'' except in the presence of some justice of one of the benches 
'' or of assize." 

The jurisdiction of the Court of Quarter Sessions thus ex- 
tended nominally to all felonies and indeed to all crimes except 
treason, subject only to the condition that in cases of difficulty 
a judge of the superior courts ought to be present. 

All through the sixteenth century the Quarter Sessions did 
in fact sentence to death large numbers of people, who were 
executed upon their sentence. This appears from Mr. Hamil- 
ton's History of the Quarter Sessions, compiled from records at 
Exeter Castle ; but they seem to have confined themselves 
principally to cases of theft and the like. As time went 
on their jurisdiction was in practice greatly narrowed, and 

^ Dig. Grim. Proc. p. 23, ch. vi. 

2 Lambard, p. 43 ; 2 Stephen's Com. QiQ. 3 Chitty, 138. 






COMMISSIONS OF THE PEACE. II 5 

Ohitty, writing in 1826, says, '' It is now the common practice Chap. IV. 
" to try only petty larcenies and misdemeanours in this 
'' court." It was not thought proper that they should deal 
with capital offences even when they were entitled to the 
benefit of clergy. It was a singular indirect effect of the 
old law as to capital punishment that it thus came to narrow 
and cripple the powers of the Court of Quarter Sessions. 
Their jurisdiction as regards crimes is now determined by 
^ 5 & 6 Vic. c. 38, passed in 1842, soon after the law relating 
to the punishment of death had been reduced nearly, though 
not quite, to its present condition. This Act provides nega- 
tively that the Court shall not try prisoners accused of 
treason, murder, or any capital felony, or for any felony for 
which on a first conviction an offender may be sentenced to 
penal servitude for life, nor for any one of eighteen other 
specified offences, which include all the offences in relation 
to which legal or constitutional questions of importance are 
likely to arise. All offences except these they can try 
under the statute above referred to, and under the terms of 
their Commission. 

The only point which remains to be noticed in connection 
with the Quarter Sessions for counties is the local limits of 
their jurisdiction. This depends upon the Commissions by 
which the justices are appointed, and which assign the limits 
within which they are to act. ^ There are in England and 
Wales the following Commissions : — 

One for each county in England and Wales, 
except York and Lincoln 50 

One for each Kiding of the county of York . 3 

One for each of the three parts (Lindsay, Hol- 
land, and Kesteven) of the county of Lincoln 3 

One for each of the following Liberties : — 
Cawood, Cinque Ports, Ely, Haverfordwest, 
Peterborough, Ripen, St. Albans, Tower of 
London, Westminster 9 

65" 

1^ There have heen one or two small variations by subsequent legislation. 
" My friend, Mr. Godfrey LushiiiKton, was so good as to obtain from the 

HoTTie OfRce this information forme. 

I 2 



I 1 6 ' BOROUGH QUARTER SESSIONS. 

Chap. IV. There are also separate Commissions for each of the 
^eighteen counties of cities and towns, and for many 
municipal boroughs. 



2 BOROUGH QUARTER SESSIONS. 

I now pass to the Borough Quarter Sessions, the history of 
which is more complicated than that of the Quarter Sessions^ 
for counties. 

The history of the growth of towns in England has 
been considered from a constitutional point of view by 
^ many writers of high authority. It is enough for my 
present purpose to observe that from the time when Henry I. 
granted its first existing charter to the City of London 
down to our own days, charters of incorporation have been 
granted to a great number of towns and cities. These 
charters, from the earliest times, contained grants of courts 
of various degrees of importance. The mayor and aldermen 
were, in some cases, made magistrates ex officio, and autho- 
rised to hold Courts of Quarter Sessions ; and these grants 
were accompanied or not, as the case might be, by a clause 
called the " non intromittant clause," which ousted the juris- 
diction of the county magistrates. In some cases towns were 
made counties of themselves. Such towns usually appointed 
their own sheriffs. Occasionally particular officers were to 
be put upon all commissions of Gaol Delivery and Oyer and 
Terminer issued for such counties of towns. For instance 
in London, by a series of charters from the days of Henry I. 
downwards, the Lord Mayor, the Aldermen, and the Recorder, 
were to be put into all commissions of Gaol Delivery for the 
gaol of Newgate, and all commissions of Oyer and Terminer 
for the City of London. In some cases there was no limitation 
at all upon the extent of the town jurisdiction. They might 

1 Bristol, Canterbury, Chester, Coventry, Exeter, Gloucester, Lincoln, 
Lichlield, Norwich, "Worcester, and York, and the towns of Caermarthen, 
Haverfordwest, Hull, Newcastle-on-Tyno, Nottingham, Poole, and Southamp- 
ton (5 &6 Will. 4, c. 79, s. 61, and see Schedule A). 

- Dig. Criin. Ptoc. arts. 31, 88, 41. • • 

3 jjiiHam, Middle Ages; Cons. Hist. ; Brady, History of boroughs; 
Stubbs, Co7ist. Hist. 



I 



MUNICIPAL CORPOEATIONS ACT. I I 7 

try all crimes and inflict any punishment up to death. In Chap. TV. 
other cases they were confined within narrower limits. I am 
not aware of any case in which the grant ousted the con- 
current jurisdiction of justices of Gaol Delivery or com- 
missioners of Oyer and Terminer appointed for the county in 
which a corporate town not being a county of itself was 
situated, or in which it prevented the king from issuing such 
a Commission to his own justices to be executed within the 
limits of a county of a city or town corporate. In nearly 
every instance in which any such charter was granted, the 
corporation were authorised to appoint a judicial officer, 
generally a recorder, who held his office during good beha- 
viour, and acted as judge in the criminal court, and usually 
in the civil court also, if there was one. 

The counties of cities and towns, the boroughs, and the 
towns corporate continued to exercise the jurisdiction thus 
conferred upon them from the date of their respective 
charters and according to their tenor down to the year 1834. 
In tha t jear a Commission was issued to inquire into their 
various constitutions. It made several reports, the first of 
which was printed in 1835. These reports give in minute > 

detail an account of every charter known to have been ^^ 

^^ranted to every town in England and Wales. They formed 
the basis upon which was founded the ^ Municipal Corporations 
Act (5 & 6 Will. 4, c. 76). The effect of this measure would . 
hardly be apparent to any one who read it without reference 
to other matters, particularly to the reports of the Com- 
missioners, but it was as follows: — 

The Commissioners *' found satisfactory reasons for believ- 
" ing that there were in England and Wales " in all 246 
corporate towns. Of these 178 are mentioned in two schedules 
to the Act, and to them only the Act applies. The 178 do 
not include either the City of London on the one hand, or 
on the other 88 small places which had been incorporated at 
various times, but had declined in importance. Other towns 
of very great importance are also absent from the list (c.,^., 

^ On Januaiy 1, 1883, tlu; Muiiicipul f^orporations Act of 1882 (45 h 40 Vie. 
0, 50) is to coin« into forcn. It r^jxials, nj-cnacts, and consolidatcH all tlui 
oldor Acts. 



ii8 



COURTS OF TOWNS CLASSIFIED. 



Chap. IV. Manchester and Birmingham), because at the time when the 
Act passed they were not incorporated. Manchester and 
Birmingham, and a considerable number of others, have since 
been incorporated, either under ^ 7 Will. 4, and 1 Vic. c. 78, 
s. 49, or under 40 & 41 Vic. c. 69, by which the enactment 
previously mentioned is repealed and re-enacted in a more 
elaborate form, and to all boroughs so incorporated the pro- 
visions of the Municipal Corporations Act are, I believe, 
extended. 

The English towns may thus be classified as follows :— 

1. London. 

2. Eighty-eight small corporate towns not affected by tha 
Municipal Corporations Act. 

, 3. The 178 towns to which the Municipal Corporations Act 

applies. 

4. The towns which have been incorporated since the 
Municipal Corporations Act, but to which its provisions have 
been extended. 

Upon each of these classes separate observations arise : — 

1. London is, by charter, a county of itself; and by 
various charters, the Lord Mayor, the Recorder, and the 
Aldermen, were entitled to be put upon all commissions 
to deliver the gaol of Newgate, and all commissions of 
Oyer and Terminer for the City of London. By what 
precise authority they tried Middlesex prisoners also, I am 
unable to say, and it is now of no importance, but, in fact, 
they did try them. Under their charters they hold Quarter 
Sessions both for the City of London and for the Borough of 
Southwark. 

2 The provisions of the charters by which they sat as Com- 
missioners of Oyer and Terminer and Gaol Delivery, are now 
merged in the (Central Criminal Court, which was established 
by 4 & 5 Will. 4, c. 36. This Court consists of the Lord 
Mayor for the time being, the Lord Chancellor, all the Judges 
of the High Court, ^the Judge of the Provincial Courts of 

^ In the preamble to 45 & 46 Vic. c. 50, it is stated that the act of 1835 
applies to all the bodies constituted after it passed. Sec. 210 of the act of 
1882 is now substituted for 40 & 41 Vic. c. 69. 

^ Dig. Grim. Proc. art. 25. 

^ I suppose this is the effect of the Judicature x\ct of 1873. Before tliat 



COUKTS OF TOWNS CLASSIFIED. II 9 

Canterbury and York, the Aldermen of the City of London, chap. IV. 

the Recorder, the Common Serjeant and the Judge of the 

Sheriff's Court, and of every one who has held the office of 
Lord Chancellor, Lord Keeper, or a Judge of the High 
Court, and of such other persons as Her Majesty appoints. 
In practice, the judicial duties of the Court are discharged by 
the Judges of the Queen's Bench Division and the three 
judicial officers of the City. 

A Commission of Oyer and Terminer as to all offences 
committed within the district of the Central Criminal Court 
and a Commission to deliver the gaol of Newgate issues from 
time to time to the persons above mentioned. The district 
over which the court has jurisdiction, includes the City of 
London, the County of Middlesex, and certain parts of the 
Counties of Kent, Essex, and Surrey. The Court has also 
Admiralty jurisdiction. 

2. The small towns which were not affected by the Muni- 
cipal Corporations Act are numerous, but in a large number 
of cases their jurisdiction has become obsolete. In some 
cases it extended, and still extends, theoretically, to the 
infliction of capital punishment. ^Several small villages in 
Kent have charters by which they might, apparently, still 
try people for their lives, but as the county justices and 
the assizes had always concurrent jurisdiction, the power has 
been forgotten and has become, practically, obsolete. A con- 
siderable number of these small towns have either no criminal 
jurisdiction at all, or a very small one, and many have no 
recorders. 

3. The 178 towns which are mentioned in the two sche- 
dules to the Municipal Corporations Act are divided into two 

Act ])assed the judges of the Courts of Equity were not judges of the Centnil 
Criminal Court. The Judge of the Court of Admiralty and the Dean of 
the Arches were members of it. Under 37 k 38 Vic. c. 86, s. 85, the 
judge appointed under tlie Public Worship Regulation Act is ex officio Dean 
of the Arches. 

^ This seems to be the effect of s. 107, taken in connection with the inter- 
j»ret»tion of the word " Borough " in s, 142. By s. 107 it is enacted that after 
May 1, 1836, all jurisdiction to try treasons, capital fcilonies, and all other 
criminal jurisdictions whatever, granted or contlrnied by any law, &<;., or 
cljarter, &c., to any mayor, &c., "in any borough" shall erase. By s. 142 * 
" 'borough' shall be constmed to mean city, borough, port, cinc^ue ])ort, or 
" town corjiorate, named in one of the schedules (A and B)," i.e. the 178 
places referred to. 



I20 COURTS OF TOWNS (CLASSIFIED. 

Chap. IV. classes. The first class (Schedule A) contains 128 towns, as 
to which it is enacted, that they are to have separate com- 
missions of the peace. The second class (Schedule B) are to 
have separate commissions of the peace if the Crown is 
pleased, upon the petition of the Council thereof, to grant 
them. 

1 Every borough, whether in Schedule A or Schedule B 
which wished to have a separate Court of Quarter Sessions 
was to petition for one, stating what salary they were willing 
to pay their recorder, and the Crown was empowered to grant 
that a separate Court of Quarter Sessions should be thence- 
forward held in and for the borough. The right to appoint 
the recorder which had previously been vested in most cases 
in the Corporation was by this Act transferred to the 
Crown. 2 The recorder is to hold his court four times a 
year or oftener, if he thinks fit, or if the Crown thinks fit to 
direct him to do so ; ^ and he is the sole judge of the court. 
In all cases in which a separate Court of Quarter Sessions is 
granted to a borough in either schedule, the jurisdiction of 
the county justices is excluded if the borough was exempt 
from their jurisdiction before the passing of the act. In 
scheduled boroughs in which a separate Court of Quarter 
Sessions was not granted before May 1, 1836, the county 
justices are to have concurrent jurisdiction, although there 
may be a separate commission of the peace. 

It would not be worth while to ascertain the precise 
effect of these curiously qualified provisions, but by com- 
paring the list of recorders given in the Law List with the 
list of 128 boroughs in Schedule A, it appears that eighty- 
five have recorders, and that forty-three have not. Of the 
fifty towns in Schedule B, forty-one have not, and nine have, 
recorders. 

By s. 107, all the towns in both schedules which have 
not a separate Court of Quarter Sessions have lost all 
their criminal jurisdiction, and even if they have a 

^ s. 103. As to borough courts and recorders, see 45 & 46 Vic. c. 50, 
part viii. ss. 154-169. 

'•^ s. 105. 

^ s. 111. Even in cases where he used to be assessor only See 7 Will. 4, 
and 1 Vic. c. 78, s. 34. 



i 



( 



COURTS OF QUARTER SESSIONS. 12 1 

separate commission of the peace (which all the towns Chap. IV. 
in Schedule A have), the county justices have concurrent 
jurisdiction. 

No town in either schedule can have a separate Court of 
Quarter Sessions unless it has both a separate commission of 
the peace and a recorder, but the converse is not true. Many- 
towns have recorders which have no separate Court of Quarter 
Sessions, and I think that some towns have both a recorder 
and a separate commission of the peace, and yet no separate 
Court of Quarter Sessions. In such cases the recorder's 
office is merely honorary. 

Upon the whole, I think it will be found that 
about 85 of the 178 boroughs specified in the Muni- v 
cipal Corporations Act have separate Courts of Quarter 
Sessions. ' 

4. In the course of the forty-three years which have 
passed since 1836, a considerable number of new charters 
have been granted ; some to towns of the first importance, 
as for instance to Manchester and Birmingham. In some 
of these cases a separate Court of Quarter Sessions and a 
separate Commission of the Peace has been granted, and in 
others not. 

The intricacy of all this, and the difficulty of spelling it 
out from the acts of parliament and other authorities re- 
lating to the matter, is a good instance of some of the causes 
which make our law obscure and repulsive. ^ No one could 
understand the true nature and effect of the Municipal Cor- 
porations Act without acquiring a great deal of knowledge as 
to which the act itself does not even contribute a suggestion ; 
and even when that knowledge is acquired, the application of 
it to the wandering arrangement and clumsy phraseology of 
the act is a matter of much difficulty. 

The jurisdiction of the Borough Quarter Sessions over 
crimes is the same as that of the County Quarter 
Sessions. 

^ Since this was in typo, all tho acts on the subject have been consolitlated 
by 45 & 46 Vic. c. 50, which is much better drawn and arranged, but a know- 
ledge of the history of the subject is still necessary to understand it. 



2 2 SUMMARY CONVICTIONS. 



COURTS OF A SUMMARY JURISDICTION. 

Chap. IV. The last set of criminal courts still existing are the courts 
of a summary jurisdiction. Their history is short, but it is 
highly characteristic. 

From the first institution of justices of the peace to our 
own times a number of statutes have been passed authorising 
sometimes one justice, and in other cases two, to inflict in 
a summary way penalties of different kinds upon a great 
variety of offenders. These penalties have in most cases con- 
sisted in the infliction of fines of a greater or less amount, 
and sometimes in imprisonment, and occasionally in setting 
the offender in the stocks. Most of the offences created by 
legislation of this sort have consisted in the violation of rules 
laid down for some administrative purpose, and so belong 
rather to administrative law than to criminal law as usually 
j I understood. The Statute of Labourers was the first act of the 
1 1 sort, and the Poor Laws supply another illustration. Some- 
times, however, the offences subjected to summary punish- 
ment were offences properly so called — acts punished not in 
order to sanction any part of the executive government, but 
because they were regarded as mischievous in themselves. 
Nearly the oldest act of this sort still in force (though, I 
believe, it is practically obsolete) is 19 Geo. 2, c. 21 (1745-6), 
''An Act more effectually to prevent profane cursing and 
swearing." This act empowers and requires justices of the 
peace to fine profane swearers. If the offender does not 
pay, he may be sent to the house of correction with hard 
labour for ten days, or, if he is a common soldier or sailor, 
set in the stocks. 

The next act, 19 Geo. 2, c. 27, supplies another illustration. 
• It enables justices to inflict a penalty of £5 to 50s. on masters 
of ships who throw out ballast in such a way as to injure ports 
or navigable rivers. Many acts (which, I believe, have never 
been expressly repealed) punish workmen in various trades 
who dishonestly appropriate to themselves ("purloin" is a 
word frequently used) goods entrusted to them in their trade 
in a manner not amounting to theft at common law. 



ORIGIN OF PRESENT SYSTEM. I 23 

Speaking very generally, it may, I think, be said that the Chap. IV. 
general character of statutes giving summary jurisdiction to 
magistrates was for a great length of time to enable them to 
deal with matters of small importance, more particularly with 
offences in the nature of trifling nuisances or disturbances of 
good order, jurisdiction in cases of serious crime being reserved 
for juries. Besides this, it was the common characteristic of 
these acts to leave the subject of procedure unprovided for, 
or provided for only in a very general and insufficient manner. 
For instance, the 19 Geo. 2, c. 21, says nothing of the right 
of the defendant to defend himself, or even to have the 
evidence given in his hearing. Nor does it contain any 
provision as to the way in which the defendant is to be 
"caused to appear" before the magistrate, nor as to the 
attendance of witnesses, or a variety of other matters essential 
to the regular administration of justice. It was probably 
considered best to leave all such questions to the discretion of 
the justice. This vagueness led in course of time to a 
variety of questions both as to the jurisdiction and as to the 
procedure of the magistrates. These were raised upon writs of 
certiorari, which issued from the Court of King's Bench, to 
call up and quash convictions, and many convictions were 
quashed accordingly. It became usual in consequence to put 
into acts giving summary jurisdiction to magistrates ^ a clause 
taking away the writ of certiorari, but new questions arose as 
to the effect of such enactments and the cases to which they 
applied. A variety of acts which need not be specifically 
mentioned were passed which affected the procedure in such 
cases, but the subject was at last comprehensively dealt with 
by 11 & 12 Vic. c. 43, which, though open to various objec- 
tions, may by a combination of study and practice be under- 
stood, and by this act, and others amending it, the procedure 
before magistrates has been regulated since the year 1848. 

The procedure was thus reduced to system before the 
courts to which it applied were formally constituted as 
courts. The magistrates acting under these statutes formed 
in fact criminal courts, though they were not so described by 
statute till very lately. But the extent of their jurisdiction 

' e.g. 24 & 25 Vic. c. 97, s. 09, but innumerable examples might be given. 



124 GRADUAL EXPANSION OP PRESENT SYSTEM. 

Chap. IV. was increased by modern legislation and as a formal pro- 
cedure was established they came to be invested with the name 
of courts of summary jurisdiction. The following is the history 
of the gradual introduction of the name and of the reasons 
which led to its introduction. 

In 1828 the Courts of Quarter Sessions were authorised 
by ^ 6 Geo. 4, c. 43, to divide their counties into divisions 
for holding special sessions. 

In 1847 justices " in petty sessions assembled and in open 
'' court " were empowered to try offenders under fourteen 
years of age for simple larceny. The expression ''petty 
" sessions" must at that time have been rather popular than 
legal, as the preamble of 12 & 13 Vic. c. 18 (1849), recites that 
" certain meetings of the justices called petty sessions of the 
" peace are holden in and for certain divisions of the several 
" counties of England and Wales called petty sessional 
" divisions," and that important duties have lately been 
assigned to the justices attending at such petty sessions. It 
then goes on to enact that '' every sitting and acting of 
" justices of the peace or of a stipendiary magistrate shall 
'' be deemed a petty sessions of the peace, and the district in 
*' which the same shall be holden shall be deemed a petty 
" sessional division." Enactments follow to the effect that 
places shall be provided for holding such petty sessions out 
of the county or borough rate. 

The summary powers of magistrates in cases of serious crime 
were considerably enlarged by several later acts. The first 
of these was 18 & 19 Vic. c. 126, commonly known as the 
Criminal Justice Act, 1855, which (as amended by 31 «& 32 
Vic. c. 116) gives justices summary jurisdiction over theft 
and embezzlement of things of the value of less than five 
shillings if the party accused consents, and power, if they 
think fit to do so, to take a plea of guilty in cases where 
the value of the property exceeds five shillings. This was 
followed by the Criminal Law Consolidation Acts of 1861, 
each of which (except the Forgery Act) contains many pro- 
visions conferring jurisdiction on justices in what would 

1 Amended by 6 & 7 Will. 4, c. 12. 



SUMMARY JURISDICTION ACT, 1 879. I 25 

commonly be described as criminal cases, such jurisdiction Chap. IV. 
being in some cases (as, for instance, in the case of an assault) 
concurrent with that of the superior courts, and in other 
cases supplementary to it. 

Ten years later the Prevention of Crimes Act, 1871 
^ (34 & 35 Vic. c. 112), conferred upon justices many powers 
in connection, amongst other things, with the system of police 
supervision then established, and introduced (I am not sure 
whether for the first time) the expression '' Court of Sum- 
*' mary Jurisdiction," ^ defining it for the purposes of the act 
only. It may have been used in some later acts, but how- 
ever this may be, the courts of summary jurisdiction are 
now regularly constituted and their jurisdiction is defined, 
and their procedure prescribed by the Summary Jurisdiction 
Act, 1879 (42 & 43 Vic. c. 49). ^ Under the provisions of 
this act a *' court of summary jurisdiction means any justice 
" of the peace or other magistrate, by whatever name called, 
" to whom jurisdiction is given by or who is or are authorised 
" to act under the Summary Jurisdiction Acts, or any of 
" such Acts." These acts are defined as being 11 & 12 Vic. 
0. 43, the Summary Jurisdiction Act itself, and all acts past 
or future amending either of them. 

* The courts may try all children under twelve for any 
offence except homicide, unless the parent or guardian 
objects. 

^ They may try persons between twelve and sixteen, if 
they consent, for larceny, and cognate offences, and adults, if 
they consent, for a somewhat more restricted class of crimes. 

^ They may also receive a plea of guilty from an adult 
for an offence for which a person between twelve and sixteen 
might plead guilty. 

The limit of their power of inflicting punishment is in 
most cases three months' imprisonment and hard labour. 
In the case of adults pleading guilty, it is six months' im- 
prisonment and hard labour. In the case of children under 

* This replaced a similar Act, 82 & 33 Vic. c. 69, the Habitual Criminals 
Act, ]8«9. 

^ See 8. 17. Tlie definition is very elaborate. 

'^ 8. CO. * H. 10 (1). 8. II (1). • 8. 18. 



126 



FRANCHISE COURTS. 



Chap. IV. twelve, one month's imprisonment, and in the case of boys 
under sixteen and twelve, whipping to the extent of twelve 
and six strokes of a birch respectively. 



THE COURTS OF THE FRANCHISES. 

I now pass to the courts of which the interest is only 
historical. From the earliest period of English history, the 
King claimed and exercised the right of granting jurisdiction 
of greater or less extent to his subjects. It would be impos- 
sible in such a work as this to treat the subject of the extent 
and nature of this branch of the prerogative fully, or to give 
anything like a detailed history of the manner in which it 
has in fact been used. It will be sufficient for my purpose 
to refer to three principal classes of franchises ; that is to say 
(1) grants of courts to manors, castles, &c., and grants of courts 
leet ; (2) grants of Jura Regalia and Counties Palatine ; and 
(3) Forest Courts. 

The way in which in the very earliest times property in 
land was accompanied by jurisdiction is fully treated (amongst 
other writers) by Sir Francis Palgrave and Mr. Stubbs, and I 
will content myself with a reference to their writings on the 
subject. Whatever may have been the precise nature and 
origin of manors and manor courts, there can be no doubt 
that they formed an important element in the judicial in- 
stitutions of the country before and at the time of the form- 
ation of the common law. The following passage from Brac- 
ton gives a full account of the state of the franchise courts 
in his time. " There are certain barons and others who have 
" franchise, to wit, sock and sack, toll and team, infangenthef, 
" and utfangenthef They may judge in their court if any 
" one is found within their liberty in actual possession 
" of stolen goods ; ^ that is to say (sicut), handhabend or 
" bakbarend, and if he is pursued by the ^ saccabor " (the 
person entitled to the goods), "for if he is not in actual 
" possession of the goods, although he may be followed as a 

^ "Sey situs de aliquo latrocinio manifesto." ^ i gtubbs, Cons. Hist. 






THE HUNDRED ROLLS. 12/ 

" thief" (probably by hue and cry), " ^it shall not pertain to Chap. IV. 
" the court (i.e. the franchise court), to take cognizance of 
" such a theft, or to inquire by the country, whether the 
'' person not so possessed was guilty or not." 

" Now infangenthef means a thief taken on the ground of 
" another, ^ being one of his own men, and being in actual 
" possession of the stolen property. Utfangenthef is a foreign 
" thief coming from elsewhere from the land of another, and 
" taken in the land of the lord of the franchise. But it does 
" not follow that he (the lord) can bring back into his franchise 
" his own man taken out of his franchise and there judge 
" him by reason of such franchise. For a man must abide 
" the law of the place where he offends. The lords of 
" franchises may judge their own robbers and foreign 
" robbers taken in their franchise. They can also take 
" cognizance of medleys and assaults and woundings, unless 
" felony or breach of the king's peace or the sheriff's is 
" charged." 

It so happens that we have the means of measuring with 
accuracy the nature and extent of these franchises. The 
troubles of the reign of Henry III. led to the assumption by 
the nobility of all sorts of authority, and especially to the 
exercise by them of an immense amount of criminal jurisdic- 
tion. Edward I., on his return from the crusade in the 
second year of his reign, issued a commission to justices, 
in the nature of justices in eyre, to inquire into the state 
of the demesnes, the rights and revenues of the Crown, 
the conduct of the sheriffs, and in particular into all fran- 
chises. The articles drawn up for their guidance are very 
similar to those which were issued to the justices in eyre. 
One of them which has special reference to franchises is thus 

^ '* Non pertinebit ad curiam hundreda vel wapentakia cognoscere de 
*' hujusmodi furtis." I do not understand the words hundreda vel wapen- 
tokia. Sir Horace Twiss translates it "shall not pertain to the court, nor 
" the hundred, nor the wapentake, to take cognizance," &c. This can 
hardly be right, as it would imidy that a thief within a franchise not taken 
in possession of the goods would not be liable to bo tried at all. HesideH, 
this does not seem to be the meaning of the words. Can it mean " it does 
'* not appertain to the court in the hundred or wapctitake, i.e. acting as a 
" hundred court, to take cognizance," &c. ? 

"^ "De homiiiibuH suis propriis," Sir H. Twiss translates "by his own 
" men," which F think is not consistent with whiii fnllnwH. 



128 



STATUTE OF QUO WARRANTO. 



Chap. IV. worded, " Qui etiam alii a rege clamant habere retornum 
" brevium et qui teneant placita de vetito namio, et qui cla- 
" mant habere wreccum maris quo waranto et alias libertates 
" regias ut furcas assisas panis et cerevisise et alia quae ad 
" coronam pertinent et quo tempore." 

The commissioners went through every county in England, 
and took inquisitions as to every hundred showing in detail, 
in reference to each what franchises existed in it and under 
what warrant they were claimed. Their returns are called 
the Rotuli Hundredorum, and they furnish as complete and 
authentic a picture of one part of English life in the years 
1275-8, as Domesday Book affords of another about two 
centuries earlier. 

The returns made by the Commissioners were the occasion 
of the ^ Statute of Gloucester, the effect of which was to 
declare that all who claimed franchises must appear before 
the king or the justices in eyre and prove their title to them, 
and that if they failed to do so the franchises should be 
seized into the king's hands. ^This statute creates the writ 
Quo Warranto, which still affords a remedy for excesses of 
jurisdiction of whatever nature. 

The Hundred Rolls deserve a far more careful examination 
than could properly be given to them in this place, but I will 
give a few illustrations of that part of their contents which 
bears upon the history of the courts granted by charter. The 
general impression which they convey is that the usur- 

^ 6 Edw. 1 (1278). . 

2 The note made by Coke in his second Institute (p. 280) on the Statute of 
Gloucester, quotes from Polydore Virgil a passage treating the Act as most 
tyrannical. "The king wanting money," says Coke, paraphrasing his 
authority, "there were some innovators in those days that persuaded the 
*' king that few or none of the nobility, clergy, or commonwealths that had 
** franchises of the grants of the king's predecessors had right to them, for 
*' that they had no charter to them for the same, for that in troth most of 
•' their charters, either by length of time, or injury of wars and insurrections, 
"or by casualty, were either consumed or lost : whereupon (as commonly 
" new inventions have new ways) it was openly proclaimed that every man 
" that held those liberties or other possessions by grant from any of the 
" kmg's progenitors should before certain selected persons thereunto appointed 
"show 'quo jure quove nomine illi retinerent,' &c. Whereupon many that 
" had long continued in qniet possession were taken into the king's hands. 
" Hereatthe story says, 'Visum est omnibus edictum ejusmodi post homines 
" ' natos longe asperrimum : qui fremitus hominum ? quam irati animi ? 
" * quanto in odio princeps esse repente c(E])it.' " Perhaps if Coke had been 
acquainted with the Hundred Rolls (which he does not mention) he would 
have been of a different opinion. 



FRANCHISE OF INFANGTHIEF. 1 29 

pation of fraDchises had gone to an extraordinary length. Chap. IV. 

In every county there are numerous entries of " hdbet furcas ; " 

" he has a gallows." Thus in Bedfordshire there were eight, 

in Berkshire thirty-five, of which no less than twelve are 

mentioned in the hundred of Newbury alone, nor were these 

" furcce" left idle, as the following entry (there are many 

others) sufficiently shows : ^ "Hundr', de Toltyntre. The Arch- 

" bishop of Canterbury has return of writ, wreck of the sea, 

" gallows, assize of bread and beer, and pleas of wrongful dis- 

" tress, they (the jurors) knew not by what warrant. Also Lord 

" William de Monte Canis has a gallows at Swaneschamp in 

" his barony, and there three thieves were hung, and the 

" monks hospitallers took them to the monastery where one of 

" them was found to be alive, and he stayed in that church as 

" long as he pleased, and left it when he pleased, and is still 

" alive. Also they say that nine years ago Adam Toxkemale 

" was hung in the same place, on an oak, by the judgment of 

" the court of Hertleye, and he was taken there by the suitors 

" of the whole court, and they found the gallows fallen down 

" and they will not put it up. The jurors knew not by what 

" warrant." 

The following illustration of the same right is found in the 
2 Parliament EoUs. In 1290 (18 Edw. 1), " Bogo de Knowell 
" the King's bailiff of Montgomery complains that whereas one 
" of the King's men of Montgomery slew one of the men of 
" the Bishop of Hereford and fled to the land of Edmund 
" Mortimer of Wigmore, — Edmund though often asked by 
" Bogo to give up the said felon to be tried in the King's 
" Court tried him on the suit of the relations of the slain 
" man in his own court at Wigmore, and hanged him to the 
*' injury of the franchise of the said castle of Montgomery." 
Mortimer confessing the fact, the liberty of Wigmore was 
adjudged to be forfeited, but the King allowed him to retain 
it on condition " quod idem Edmundus in signum restitu- 
" tionis libertatis Domini Regis proBdictae, reddat predicto 
" Bogoni Ballivo Domini Regis, quandam formam hominis 
" nomine et loco prajdicti felonis. Et prteccptum est eidem 
" Ballivo quod formam illam admittat et loco prcedicti 
1 1 RoL Ilund. 220. = 1 Twl. Par. 45, 

VOL. I. K 



130 ILLUSTRATIONS OF FRANCHISE COURTS. 

Chap. IV. " felonis suspendere faciat, et suspens', quam diu poterit 
" pendere permittat," &c. Mortimer made difficulties about 
delivering the effigy, and his franchise was seized till he 
did so. 

Innumerable entries in the Kolls show the nature of the 
franchise courts and the reason why they were so much 
valued. They were a regular source of income to the lord 
of the franchise, and were by him farmed out to bailiffs or 
stewards who made their profit by fines and amercements, 
which were often exorbitant and must always have been 
vexatious. The power to hold courts frequently, to require 
the attendance at them of all who owed suit and service, and 
to levy fines for every default must have been extremely 
liable to abuse. The effect of it was to establish in every 
liberty a person who was at once a common informer and a 
judge in his own cause. ^ In regard to the town of Ponte- 
fract for instance, the return is that the Earl of Lincoln and 
his bailiffs abuse their franchise by forcing the suitors to 
attend daily or weekly, and to 2 swear as often as they please, 
and if any one objects they imprison him and keep him im- 
prisoned till he answers any sort of plea. 

The bailiffs, moreover, had many ways of extorting 
money by the abuse of their power. ^In the hundred of 
Tenterden the jurors present that one Hugo de Wey, who 
was probably bailiff or chief constable, ^'took of Josiah de 
" Smaldene 12d., for removing him from an assize. Also he 
" impounded the mare of Gunnilda de M'skesh'm by virtue of 
" his office, and Avould not give her up till he got half a marc, 
" which was not due to him. Also, by virtue of his office, he 
" took ten shillings from Henry Miller, falsely alleging that a 
" prisoner who had been attached in Tenterden hundred had, 
" by Miller's means escaped. Also he forced Joseph Askelin 
" of Emsiden, and "William his son and his daughter to come 
" to the house of William de la Feld, in the same hundred, 
" and they came. And because they had been bound by 
" robbers in their own houses in the hundred of Ralwinden 
" and could not say by whom they were bound he took from 

^ 1 Eot. Hund. 119. ^ i.e. to serve on juries. 

3 IRoLHund. 237. 



EFFECTS OF LOCAL JURISDICTION. I3I 

'' them half a marc. Also Hugh took a marc unjustly from Chap. IV. 

" Henry Smith of Tenterden, because the said Henry threw out 

" of his own close a linen gown and towels which a female 

" neighbour of his hung there without his knowledge and on 

" an unlawful {falsa) occasion. Also Hugo charged the said 

" Henry, while he lay ill in bed, with being an usurer, whereby 

" the said Henry promised the said Hugh twenty shillings and 

" paid him, and paid forty shillings for the use {ad opus) of 

" Lord William de Hevre, the then sheriff, that he might have 

" an inquisition from seven hundreds to see whether he was a 

" usurer or not, which inquisition acquitted him. And, by 

" virtue of his office he (de Wey) took one Nicholas Mason of 

" the parish of Lamberhurst on account of a quarrel which 

" Mason's sister, Beatrix, had against him, to wit, that she had 

" lent Nicholas £20 of her money which he would not pay 

" her. And Hugh kept the body of the said Nicholas in the 

" hundred of Tenterden till he unjustly received the aforesaid 

" money and kept it for himself, and Beatrix has got, and 

" can get, none of it," &c. 

The hundred of Tenterden, which was in the king's hands^ 
paid the king, with seven other hundreds, £10 a year at Dover 
Castle. De Wey's extortions came in ^ all to £27 4s. 4^d. or 
nearly three times as much as had to be paid to the king. 

The Hundred Rolls supply various illustrations of the 
spirit which these local jurisdictions fostered, one of which I 
will quote. ^ In the wapentake of Stayncliff, in Yorkshire, 
the return says : " Gilbertus de Clifton ballivus de Stayn- 
" cliff" (which was in the hands of the Earl of Lincoln by 
" grant from Henry IIL), "verbis turpessimis {sic) insultavit 
" Willielmum de Chatterton Justiciarium assignatum ad istas 
" inquisitiones capiendas et minas intulit pro eo quod sug- 
" gessit juratoribus patriae quod non omittent veritatem dicere 
" de ballivis cornitis Lincolniae propter aliquem timorem et 
" dictuH Gilbertus dixit ei quod si praesens fuisset ubi haec 
" verba predicasset ipsum traxisset per pedes, et adjecit quod 
" ante dimidium annum noluisset inquisitiones istas focisso 
" pro tot^ terrtl suii. 



' 1 have omitted Ho.vcral for the sake of brevity. 
3 1 Rot. Ilund. 111. 



K 2 



132 GRANTS OF HUNDREDS AND LEETS. 

Chap. IV. " Item cum Reginald Blanchard de Wadinton comparuisset 
" coram duodecem juratores istius wapentakiae ostensurus 
" transgressiones sibi et aliis de patria per ballivos comitis 
" Lincolnise illatas, dictus Gilbertus hsec percipiens cepit 
" averia sua ; et retinuit nee propter mandatum justiciari- 
" orum ad inquisitiones illis partibus capiendas assignatos ea 
" deliberare curavit, sed dixit quod si ipsi infra libertatem sui 
" domini venissent corpora eorum et omnia bona sua arestasset 
" nisi venisse se ^ nomine comitis domini sui." 

2 The use made of these inquisitions seems to have been 
that after the passing of the Statute of Gloucester, the inqui- 
sitions or copies of them were given to the justices on their 
next eyre, and in every case in which the return "nesciunt 
" quo warranto " appeared on the Hundred Roll, the person 
in possession of the franchise was required to show his title, 
and if he failed to do so was deprived of it. 

These proceedings must have struck a heavy blow at the 
Franchise Courts, but it appears from the Parliament Rolls 
that the practice of granting out hundreds to private persons 
continued long afterwards. The effect of this was that the 
fines and amercements of the Hundred Court went to the 
grantee for his own use, subject to a fixed payment to the 
king. The practice however was avowedly a bad one. In 
^ 1306 (35 Edw. 1), the following entry appears on the 
Parliament Roll : '' The king has said and commanded that 
" after the grant which he has made to the Earl of Lincoln to 
" have return of writs in two hundreds for his life, he will 
" grant no such franchise to any one else as long as he lives, 
" except his own children. And the king's will is that this be 
" enrolled in the Chancery, the Wardrobe, and the Exchequer." 

In 1328, by the Statute of Northampton (2 Edw. 3, c. 12), 
it was enacted that hundreds and wapentakes let to farm 
should be rejoined to the counties to which they belonged, 
and not be so let in future.* 

^ There is here an abbreviation which I cannot read ; the word must mean 
" proved," or the like. 

2 See Mr. Illingworth's introduction to the Rotuli Hundrcdorum. 

3 1 Rot. Par. 111. 

■* In 1376 (50 Edw. 3) there occurs an entry on the Parliament Roll 
which shows that this statute was not always observed, and which illustrates 
in detail the effect of the grant of a hundred. 2 Rot. Par. 349. 



COUNTIES PALATINE. 133 

The decline in the importance of the Hundred Courts, and Chap, 17, 
the effect of the writ of Quo Warranto and of the Statute of 
Northampton, must have been to put an end to a large 
number of the Franchise Courts, though as I have already- 
said, the courts leet, which are still attached to particular 
manors or other places, still remain as a vestige of them. 

A minute inquiry into the history of all the Franchise 
Courts would, of course, be out of the question on this occa- 
sion, but I may refer shortly to a few of the most important 
of them which survived in name till very lately, though they 
had for a long time been practically absorbed into the 
general system. 

The most important of these courts were the courts of the 
three Counties Palatine, Cheshire, Durham, and Lancashire. 

According to ^ Coke the County Palatine of Chester being a 
County Palatine by prescription, was " the most ancient and 
" most honourable County Palatine remaining in England " in 
his time. It was originally granted by the Conqueror to his 
nephew Hugh Lupus, and came afterwards to be one of the 
honours of the Prince of Wales. 

The County Palatine of Durham came next in antiquity. 
There are several records in the Parliament Rolls which set 
out its history and privileges at considerable length. 

In the Rolls of Parliament, 21 & 22 Edw. 1 (a.d. 1292), 
there is a curious record of a presentment, made under the 
Statute of Gloucester, as to the privileges of the Bishop of 
Durham, from which it appears that the Bishop " solet per 
" ballivos suos obviare justic' itineratur' hie in adventu suo 
" infra com' istum apud Chylewell vel apud Fourstanes vel 
" apud Quakende brigge, videlicet per quam illarum partium 
" contingeret justic' venire. Et postea venire coram eis hie 
" apud Novum Castrum prime die itineris et tarn in obviatione 
" justic' quam hie petere a prsefatis justic' articulos coronse 
" placitandos hie in itinere." It also appears, however, that 
the Bishop had " Cancellarium suum et per brevia sua et 
"justiciaries suos proprios placitat" in certain parts of tlie 
county. The later history of the County Palatine may be 
collected from a record in the Parliament Rolls, iv. 426 — 
1 ithlmt. p. 211. 



134 COUNTIES PALATINE. 

Chap. IV. 31, 11 & 12 Hen. 6, A.D. 1433. In this record Durham is 
said to have been a County Palatine before the Conquest. 
The sulyect is also discussed at length in the preface to 
Begistrum JDunelmense, published by order of the Master of 
the Rolls and edited by Sir T. D. Hardy. The County 
Palatine was vested in the Bishop of Durham in the year 
1836, when by ^6 & 7 Will. 4, c. 19, the palatine juris- 
diction of the Bishop of Durham was transferred to the 
Crown. 

As to the County Palatine of Lancaster, Coke says : — " In 
" full parliament a°. 50] Edw. 3 (1376), the king erected 
" the county of Lancaster a County Palatine, and honoured 
" the Duke of Lancaster (John of Gaunt) therewith for term 
" of his life," and he quotes from the Patent Rolls a grant to 
that effect, saying that the Duke was to hold as freely as the 
Earl of Chester. The Duchy was held by Henry V. and 
Henry VI., and was the subject of a remarkable act, in 
1 Edw. 4 (1461), ^by which it is ''ordeigned and stab- 
" lished " that certain lordships, &c., said to be forfeited "by 
" Henry late called King Henry the Sixt make and be 
" called the said ' Duchie of Lancaster Corporate ' and be 
" called the ^ Duchy of Lancaster,' and that the County of 
" Lancaster be a County Palatine, with a real chancellor, 
" judges, and officers there for the same, and over that 
" another seal called the seal of the Duchy of Lancaster." 
The Duchy was by this act permanently annexed to the 
Crown. 

Anciently ^ " the power and authority of those that had 
" Counties Palatine was king-like, for they might pardon 
" treasons, murders, felonies, and outlawries thereupon. They 
" might also make justices of eyre, justices of assize, of gaol 
" delivery, and of the peace. And all original and judicial 
" writs, and all manner of indictments of treason and felony 
" and the process thereupon were made in the name of the 
" person having such Counties Palatine. And in every writ 
" and indictment within any County Palatine it was supposed 
" to be contra pacem of him that had the County Palatine." 

1 See also 21 & 22 Vic. c. 45. 2 5 j^^f^ p^^^ 473, 

8 ith Inst. 204. 



FOREST COURTS. I 35 

These powers were greatly diminished by the act 27 Hen. Chap. IV. 
8, c. 24 (a.d. 1535), which enacted that no one but the 
king should have power to make any justice of assize, of 
the peace, or of gaol delivery, in any County Palatine or 
other liberty, and that all writs and indictments should be in 
the king's name and laid as against the king's peace. It was, 
however, provided that commissions to the county of Lan- 
caster should be under the king's usual seal of Criminal Courts 
of Lancaster. This put the Durham and Lancashire Assizes 
and Quarter Sessions on the same footing as those of the rest 
of the country, except that the Lancashire commissions were 
under a different seal. Chester had till 1830 a local Chief 
Justice and Second Justice, who, however, were appointed by 
the Crown. These offices were abolished, andlt was enacted 
that Assizes should be held in Chester and in Wales, in the 
same way as in other places, by 11 Geo, 4, and 1 Will. 4> 
c. 70, ss. 14 and 20. Lastly, it was provided by the Judi- 
cature Act of 1873 (36 & 37 Vic. c. 66, s. 99), that " the 
" Counties Palatine of Lancaster and Durham shall respec- 
" tively cease to be Counties Palatine as regards the issue 
*^ of Commissions of Assize or other like commissions but no 
'* further." 

Thus all the greater Franchise Courts have by degrees been 
turned into Courts of Assize and Quarter Sessions like the 
rest. . 

THE FOREST COURTS. ij 

The Courts of the Forests were at one time important, 
and their procedure was curious. A forest was one of the 
highest of royal franchises. It was thus defined by 
^ Manwood : " A forest is a certain territory of woody 
" grounds and fruitful pastures, privileged for wild beasts 
" and fowls, fowls of forest chase and warren, to rest and 
" abide in the safe protection of the King." Within these 
territories the forest laws prevailed, and were administered by 
the Forest Courts. It must not be supposed that the forests 
were mere wildernesses, or that the soil was the king's pro- 
perty. On the contrary, the soil was private property, and 

1 Forest Laws, p. 40. 



13^ PROSECUTION OF FOREST OFFENCES. 

Chap. I^^ the population might be considerable, and these were the 
circumstances which made the forest laws so great a hardship 
as they undoubtedly were. The principal object of the forest 
laws was to subordinate within the forests all the rights of the 
proprietors to the exercise of the King's right of hunting. 
" The laws of the forest do restrain every man from cutting 
" down of his woods within his own freehold in the forest " is 
the general title of ch. viii. 2, of Manwood, and though this 
rule was subject to exceptions it must have acted most 
harshly ; for instance, ^ an owner wishing to cut down a wood 
had to " repair to the Lord Chief Justice of the Forest and 
" show his honour what his request is," and get "a writ of 
" ad quod damnum " addressed to the Warden of the Forest, 
who was to summon a jury, who were to certify to the King in 
Chancery upon oath " these ten points following." Many 
other acts of ownership, e.g. ^ ploughing up ancient meadows 
amounted to waste, which was a forest offence. ^ An " assart " 
was worse than a waste. It was where a man cut down woods 
and tilled the ground. A * purpresture or encroachment was 
even worse than an assart, and many other offences might be 
committed, — by keeping dogs, by surcharging the forest, by 
poaching, or by unauthorised taking of various casual profits. 
The system of courts by which these offences were dealt 
with was elaborate. The officers of the forest were the 
Verderers, elected like the Coroner in the County Court; 
the Regarders; the Foresters. The foresters resembled 
constables ; the regarders were inspectors who from time to 
time visited the forest; and the verderers were the judges of 
the local courts and heads of the forest to which they were 
attached. Above all these was the Lord Chief Justice in 
Eyre of the Forests. There were three separate courts by 
which the forest law was enforced. Once in every forty days 
was held a court of attachment ; three times a year a Court 
of Swanimote (the mote or meeting of the swains) ; and at 
uncertain intervals a Court of Justice Seat, presided over by 
the Lord Chief Justice in Eyre of the Forests. When an 
offence was committed and came to the knowledge of the 

1 Forest Latvs, viii. 3. "^ 2b. viii. 5. ^ Jb. ix. 2. 

* lb. xi. 



COURTS OF ATTACHMENT, SWANIMOTE, AND JUSTICE SEAT. 137 

forester, it was his duty to attach the suspected offender, Chap. IV, 
i.e., to take steps to secure his appearance to answer for his 
offence. -^ This might be done according to circumstances, 
either by seizing " his cows, his horse, or any other goods 
" that he had within the forest," or (if he was " taken with the 
" manner " " trespassing in vert ") by attaching his body sub- 
ject to the right of being bailed or mainprised, or if taken in 
the manner in certain other cases, by attaching his body 
without bail or mainprise, i.e., by imprisoning him. At the 
Court of Attachments all such attachments were presented 
and enrolled under the direction of the verderers, and both 
things and persons so attached might be replevied. '^ At the 
Court of Swanimote, held three times a year, the verderers 
were judges, and they and all the officers of the forest, and 
four men and the reeve from every township in the forest, had 
to attend and receive indictments for forest offences, especially 
in respect of the persons attached by the foresters at the 
Courts of Attachment. The Swanimote Court either con- 
victed or acquitted as it seems on their local knowledge. 
^ Manwood says : " All the presentments of the foresters for 
" any offence in the forest, either in vert or venison, are there 
" delivered to the jury which are sworn for that purpose to 
" inquire the truth of those matters ; and if the jury do find 
" those presentments that the foresters have presented be true, 
" then the offender against whom they are presented doth 
" stand convicted thereof in law, and shall not per assisas 
" forestse traverse any such indictment." 

The Court of Swanimote, however, could not give judgment. 
This power was vested exclusively in the Court of Justice 
Seat, which was held, when the King issued a commission 
for that purpose, by an officer of great dignity, called the 
Lord Chief Justice of the Forest in Eyre. The charges 
given at the Swanimote and at the Court of Justice Seat * are 
printed in Manwood, and enumerate all the offences which 
could be committed, either against the forest laws by the 
public, or by officers of the forest against the public. 
They are most elaborate, the first containing forty-five, and 

^ Forest Laws, xxii. 5. ' Ih. xxiii. 2. 

* lb. xxiii. 6. * lb. xxiii. 7, and xxiv. 



13^ WELSH COURTS. 

Chap. IV. the second eighty-four heads. The Court of Justice Seat 
passed judgment on the offenders presented at the Court of 
Attachments and convicted at the Court of Swanimote, and 
from its decision there was no appeal. ^"The Lord Chief 
" Justice of the Forest hath an absolute authority appointed 
" unto him to determine of offences that are committed and 
" done within the King's Majesty's forests, either in vert or 
" venison, and the same offences are to be determined before 
" him, and not before any other justice." Of these courts 
Blackstone says : " These Justices in Eyre were instituted by 
" Henry II. A.D. 1184," " and their courts were formerly 
" very regularly held ; ^ but the last Court of Justice Seat of 
*' any note was that holden in the reign of Charles I. before 
" the Earl of Holland ; the rigorous proceedings of which are 
" reported by Sir William Jones. After the Restoration 
" another was held, pro forma only, before the Earl of 
" Oxford, but since the era of the Revolution in 1688, the 
" forest laws have fallen into total disuse, to the great ad- 
" vantage of the subject." 

THE WELSH COURTS. 

So far I have considered the criminal courts of England. 
The same system now prevails in Wales, but the Welsh courts 
have a history of their own. 

It consists of four stages. (1) The institutions of Edward I. 
(2) The jurisdiction of the Lords Marchers. (3) The insti- 
tutions of Henry VIII. (4) The changes made in the reign 
of William IV. 

Edward I., after the conquest of the greater part of Wales, 
passed an act known as the Statutum Wallice (12 Edw. 1, 
1280), which is one of the most remarkable monuments still 
remaining of the methods by which in that age justice was 
administered. It may be described as a code of criminal and 
revenue procedure prepared specially for Wales, and may be 
compared to the codes prepared under the direction of Lord 
Lawrence for the government of the Punjab on its annexation, 

1 Manwood, p. 489. 

2 Ou this, see Gardiner's Fall of the Monarchy, i. 71, and referring to per- 
sonal government of Charles L, ii. 73, 76, 172, 182. 






STATUTUM WALLIiE. I 39 

or to the regulations which having been already enacted for Chap. IV. 
Lower Bengal were re-enacted for what are now known as 
the North- West Provinces upon their conquest in 1801. To 
borrow the language of Indian administration, the Statutum 
Wallice converted a considerable part of Wales into a regu- 
lation province. It recites that Divine Providence has an- 
nexed and united the land of Wales, which had previously- 
been subject to the King by feudal law^, to the Crown of 
England as part of the body of the same. It also recites 
that Edward had inquired into the laws and customs of 
Wales, allowed some, amended others, and made some 
additions, and it then goes on to enact that they are to be 
held and observed in the manner under written. 

The statute lays down a complete scheme of government 
setting forth first the divisions of the country, then the 
powers of the courts and officers, especially the sheriffs and 
coroners by whom it was to be governed, and then giving 
the forms of writs in all actions to be brought. This last enact- 
ment of course introduced into Wales the English Common 
Law of which the writs in question are the foundation. 

The part of this memorable document which concerns the 
present purpose is that which relates to the organisation of 
the Courts. It provides as follows : " We provide and decree 
" that the justice of Snowdon (Snaudon) shall have the 
*^ custody and rule of our royal peace in Snowdon and our 
" adjacent lands of Wales, and shall administer justice to all 
" according to the royal original writs, laws and customs 
" under written." 

" We also will and ordain that there be sheriffs, coroners 
" and bailiffs of ^ commotes in Snowdon and in our lands in 
** those parts." It then proceeds to provide that there shall 
be a sheriff for each of six counties, namely, Anglesea, 
Caernarvon, Merioneth, Flint, Caermarthen, and Cardigan. 

The effect of this was to introduce a justice, sheriffs, 
coroners, and courts similar to those of EnglaTid into the 
six counties above named. The remainder of Wales, which 
till the reign of Henry VIII. included Monmouthshire and 

* The commote was a division like a hundred. It was n sub-division of a 
cantred. 



140 LORDS MARCHERS. 

Chap. IV part of the present counties of Shropshire, Hereford, and 
Gloucester, was then, and till the reign of Henry VIII., con- 
tinued to be, divided into districts called " Lordships Marchers,"" 
which were subject, to the authority of hereditary rulers called 
Lords Marchers. These Lords Marchers exercised what can 
hardly be described otherwise than as a despotic authority ; 
though by 28 Edw. 3, c. 2 (1354) it was "accorded and es- 
" tablished that all the Lords of the Marches of Wales shall be 
" perpetually attending and annexed to the Crown of England, 
" as they and their ancestors have been at all times past, and 
" not to the principality of Wales, in whose hands soever the 
" principality be or hereafter shall be." ^ Lord Herbert of Cher- 
bury in his history of Henry YIII. gives the following account 
of the Lordship Marchers : " As the Kings of England hereto- 
" fore had many times brought armies to conquer that country 
" (Wales), defended both by mountains and stout people, 
" without yet reducing them to a final and entire obedience, 
"so they resolved at last to give all that could be gained 
"there to those who would attempt it, whereupon many 
" valiant and able noblemen and gentlemen won much land 
" from the Welsh, which as gotten by force was by permission 
" of the kings then reigning held for divers ages in that 
" absolute manner as Jura Regalia Avere exercised in them by 
"the conquerors. Yet in those parts which were gotten at 
"the King's only charge (being not a few) a more regular 
"law was observed. Howsoever, the general government 
" was not only severe, but various in many parts ; insomuch, 
"that in about some 2 141 Lordships Marchers which were 
"now gotten many strange and discrepant customs were 
" practised." Lord Herbert's statement is no doubt true as 
to parts of South Wales, especially the counties of Pembroke 
and Glamorgan, but a large part of the Lordships Marchers 
must have been in the hands of native Welsh princes, who 
had never been conquered at all, but represented the original 
rulers of the country. 

A full account of the jurisdiction of the Lords Marchers 

^ P. 369. When I was at the Bar I was ouce asked to advise upon certain 
claims of a gentleman of very ancient family, who believed himself to be the 
last Lord Marcher. 

^ In 27 Hen. 8, c. 26, 137 lordships are enumerated. 



LORDSHIPS MAKCHEKS. I4I 

is to be found in ^Coke's entries. In the precedents of chap. IV, 
proceedings by way of Quo warranto he gives at length 
the pleadings in a proceeding on a Quo warranto in the 
42 Eliz. (1600) against Thomas Cornewall of Burford, in 
Shropshire. The information alleges that Burford without 
warrant uses in the manor of Stapleton and Lugharneys in 
the county of Hereford, the franchise of taking the goods 
and chattels of felons. 

To this the defendant pleaded that before and up to 
the statute of 27 Hen. 8, and from the time of legal 
memory 2 Wales was governed by Welsh laws and Welsh 
officers in all matters, whether relating to lands and tenements, 
or to life and limb, and all matters and things whatever. 
Also at the passing of the statute of 27 Hen. 8, divers 
persons were seized of divers "several lordships, called in 
" English Lordships Marchers in Wales, and held in them 
"^ royal laws and jurisdiction as well of life and limb as of 
" lands and tenements and all other things, and they could 
" pardon and had full and free power ... of pardoning all 
"treasons, felonies, and other offences whatever, and also 
" to do and execute all things whatever within their separate 
" lordships aforesaid, as freely and in as ample a manner and 
" form as the King may in his aforesaid dominions ; and that 
"moreover the King ought not and could not interfere in 
" any of the said Lordships belonging to any other person for 
" the execution of justice." The plea further states that the 
Lords Marchers were entitled to all forfeitures, goods of 
felons, deodands, &c., according to the laws and customs of 
Wales without any grant. It was further pleaded that up to 
the date of the statute the King's writ did not run in the 
Lordships Marchers. The plea then goes on to aver that 
the manors in question were Lordships Marchers, to wliich 
Cornewall and his ancestors had been entitled at the passing 
of the statute 27 Hen. 8, c. 26, and that neither that 

' Coke's Entries, 549-551, No. 9, Quo Warranto. 

' " Dominium Walline ac omnia dominia . . . ejusdem fuerunt ordinal' et 
" gnluimat' per Wallicas leges . . . ac omnes Principes Walliae inde seisiti 
" existentes tenuerunt eadem secundum leges Wallicas, ac usi fuerunt in 
" eisdcm per seperales officiarios suos eorundem dominioruni legos WoUicos 
" eorundem dominiorum et nuUas Anglicanos leges," &c. 

' ** Regales leges et jurisdictionos," 



142 HENRY VIII.'S STATUTES. 

Chap. IV. statute, nor the statute of Philip and Mary, c. 15, deprived 
him of the particular franchise in question, but confirmed it 
to him. To this plea the Attorney-General demurred, thereby 
admitting the truth of its averments. Shortly, the pleadings 
came to this, that so much of Wales as had not been brought 
under the Statutum Wallice by Edward I. continued till the 
27 Hen. 8 (1535) to be governed by a number of petty 
chiefs called Lords Marchers — chiefs who might be compared 
to the small Eajahs to whom much of the territory of the 
Punjab and the North- West Provinces still belongs. ^ 

In 1535 and 1543 two Acts were passed by Henry VIII. 
(27 Hen. 8, c: 26, concerning the laws to be used in Wales, 
and 34 & 35 Hen. 8, c. 26, an Act for certain ordinances in 
the King's dominion and principality of Wales) which were 
the complements of the Statutum Wallise, and introduced 
the English system for the administration of justice with 
some slight modifications into every part of Wales. The 
first of these Acts (27 Hen. 8, c. 26) abolishes (s. 1) all 
legal distinctions between Welshmen and Englishmen, and 
after reciting the disorders arising from the Lordships 
Marchers enacts that some of the said Lordships shall be 
annexed to adjacent English counties and others to adjacent 
Welsh counties, and that the remainder shall be formed into 
five new counties, namely, Brecon, Radnor, Montgomery, 
Denbigh, and Monmouth, the first four of which are to be 
Welsh counties and the last an English county. The Act 
then proceeds to give the details of this arrangement (ss. 4-19 
inclusive). It provides (s. 26) for a commission to divide 
all Wales except Anglesea, Flint, and Carnarvon, into hun- 
dreds, and (s. 37) empowers the King to erect such Courts of 
Justice in Wales as he thinks proper. 

The second Act (34 & 35 Hen. 8, c. 26, A.D. 1543) com- 

^ There are a number of small states in the neighbourhood of Simla which 
might well be compared to Lordships Marchers in point of size and importance, 
though the government of India exercises much more careful supervision over 
their proceedings, especially in the matter of the administration of justice, than 
the English kings from Edward I. to Henry VIII. exercised over the Lordships 
Marchers. See Punjab Administration Reporty 1878-9, p. 29, and Mr. Lepel 
Griflfin's Chiefs of the Punjab. One of these petty chiefs, the Eajah of 
Sirmur, sent 200 men to the war in Afghanistan, and many others offered 
contributions in money, camels, &c. 



WELSH JUDGES. 143 

pletes the provisions of the first. ^ It enacts (s. 2) that Chap. IV. 
thenceforth there shall be twelve shires in Wales, whereof 
eight (2 Glamorgan, Caermarthen, ^ Pembroke, Cardigan, 
Flint, Caernarvon, Anglesea, and Merioneth) are old, and 
four (Radnor, Brecknock, Montgomery, and Denbigh) were 
new, the latter having been formed out of such of the Lord- 
ships Marchers as were not annexed to other English or 
Welsh counties. The limitations of the Hundreds made 
under commission were confirmed (s. 4). It was enacted 
that there should be great sessions to be called " the King's 
Great Sessions in Wales," held twice a year in each of the 
twelve shires, as follows : — 

The Justice of Chester J FF t ° 

^ ' ^' ( Montgomery. 

3 The Justices of North Wales . . fMTrionetr^ 

^ ' ^' ( Anglesea. 

^ "And forasmuch as there are many and divers Lordships Marchers within 
** the said country or dominion of Wales lying between the shires of England, 
" and the shires of the said country and dominion of Wales, and being no 
" parcel of any other shires where the laws and due correction is used and had, 
** by reason whereof hath ensued and hath been practised, perpetrated, com- 
•* mitted, and done manifold and divers detestable murders, burnings of 
" houses, robberies, thefts, trespasses, &c., &c., the offenders making their 
" refuge from Lordship to Lordship were and continued without punishment 
*' or coiTection," &c. (s. 3.) 

2 These shires are not mentioned in the Statutum Wallise. The county of 
Glamorgan is the most ancient county in Wales. One of the companions of 
William the Conqueror, Fitz Hamon, originally conquered the district and 
established there a Lordship Marcher which was a county in itself, containing 
eighteen castles and thirty-six and a half knights fees. He had his own 
Chancery and Exchequer in Cardiff Castle, and there were eleven other Lord- 
ships Marchers, each of which was a member of the county. 

As to Pembrokeshire William the Conqueror authorised Amulf Montgomery, 
SK)n of the Earl of Shrewsbury, to conquer what he could, and he conciuered 
Pemljroke and some of the neighbouring districts. " Neither he nor his 
*' immediate successors appear to have held their possessions with such ample 
'* powers as were exercised by the Lords Marcher for the King's writs issuing 
" out of the courts at Westminster were current in the conquered territory of 
** Pembroke." Parts of Pembroke (in particular Tenby and Haverfordwest) 
were colonised by Flemings under Henry L In 1109 Gilbert de Clare, sur- 
named Strongbow, was created Earl of Pembroke by Henry L, and in 1138 
lu! was invested with all the powers of a count palatine over the country from 
which he derived his title, so that Pembroke became a county palatine. Its 
character as sucli, however, seems to have been taken away by 27 Hen. 8, 
c. 26, s. 37, which added certain towns and districts to it. See Ivcwis's Topo- 
graphical Dictionary of Wales, articles " Glamorgan " and ** Pembroke, " and 
as to Pembroke, 4th Inst. 22. 

" These I suppose had replaced the "justice of Snowdon," mentioned in 
the Statutum fVallia. 



144 CHANGES IN 183O. 

Chap. IV. A person learned in the law of the (t( a 

realm of England to be appointed by J -p 1^ v 

the King to be Justice of these shires j n] 

(s. o). \ 

. ^, 1 f Caermarthen. 

Another such person ..... J pe^^broke. 

^^' ^'' { Cardigan. 

The jurisdiction of the Justices was to include all matters 
civil and criminal which were disposed of by the English 
Superior Courts (ss. 11-52), and there were in addition to be 
Courts of Quarter Sessions, held by Justices of the Peace, 
who were to be appointed in the same manner as in England 
(ss. 53-60), and Sheriff's tourns (s. 75) and other County and 
Hundred Courts as in England (s. 73). -^ By s. 119 the King 
received an unlimited power of legislation for Wales. This 
section, though afterwards alleged to have been personal to 
the King himself, whose successors are not mentioned in the 
Act, was repealed by 21 Jas. 1, c. 10, s. 4. 

Of this statute ^Barrington (himself a Welsh judge) 
observes that it was so well drawn '' that no one clause of it 
" has ever occasioned a doubt or required an explanation," 
though Serjeant Runnington points out a few limitations upon 
this remark. At all events the Courts established by this 
statute continued to administer justice in Wales till the year 
1830, when the Welsh Courts and Judges and the Palatine 
Jurisdiction of the County of Chester were abolished. An 
additional judge was added to each of the three superior 
Courts at Westminster, and it was provided that their juris- 
diction should be extended to Wales and Chester, and that 
assizes should be held there in the same manner as in other 
parts of the country.^ 

^ Compare the power vested by various Acts of the Government of India 
in the Governor- General, and even in some cases in Lieutenant-Governors, to 
declare what laws should be in force in particular non-regulation districts. 
The validity of such legislation has been doubted, but was affirmed in R. v. 
Burah L. R. 5 Ind. App. 178. 

2 See Hale's History of the Common Law, by Runnington (ed. 1779). p. 203, 
quoting Barrington's observations, 324-329. 

3 li Geo. 4, and 1 WUl. 4, c. 70, ss. 1 and 2, and ss. 13-34. 



EXTRAORDINARY CRIMINAL COURTS. 145 



CHAPTER V. 

^ THE CRIMINAL JURISDICTION OF PARLIAMENT AND OF THE 
COURT OF THE LORD HIGH STEWARD. 

Having described the history of the courts in which the Chap. v. 
commou routine of criminal justice is carried on, I come 
to the courts which are called into activity only on 
rare occasions and for special purposes. These are the 
High Qourt of Parliament and the Court of the Lord High 
Steward. 

The criminal jurisdiction of Parliament is probably derived 
from the powers of the Curia Regis. Speaking of the reign 
of John Mr. Stubbs says, ^"As a high court of justice they had 
" heard the complaints of the king against individuals, and 
" had accepted and ratified his judgments against high 
" offenders." Speaking of Henry III.'s time he says, ^" Their 
" judicial power was abridged in practice by the strengthened 
" organisation of the royal courts, but it remained in full 
" force in reference to high offenders and causes between 
" great men ; the growth of the privileges of baronage gave 
" to the national council as an assembly of barons the 
•' character of a court of peers for the trial and amercement 
" of their fellows." 

The character of the judicial functions of Parliament 
in Edward I.'s reign may be gathered from the "Placita 
"coram ipso domino rege et concilio suo in Parliamento" 
printed in the first volume of the Parliament Rolls. It 
is not however my object to enter upon this subject further 

^ Dig. Crim. Pror. arts. 16-21. » Stubbu, li. 286, 237. » Stubbs, ii. »7. 
VOL. I. L 



146 IMPEACHMENTS. 

Chap. V. than is necessary to trace the history of the present law 
as to impeachments. 

That law may be stated as follows : — 

1. The House of Lords is a court of justice in which peers 
may be tried for any offence, and commoners for any offence 
not being ^ treason or felony upon an accusation or impeach- 
ment (ivipetitio) by the House of Commons, which is the grand 
jury of the whole nation. 

2. When such an impeachment is once made it is not 
abated either by a prorogation or by a dissolution of Parlia- 
ment, but must go on from session to session and from 
parliament to parliament till it is determined. 

3. A pardon by the Crown cannot be pleaded in bar of 
an impeachment. 

This is the net result of a long process, the nature of 
which can be understood only by a study of the judicial 
proceedings of successive parliaments. 

The earliest case to be referred to is one which perhaps 
hardly deserves the name of a • parliamentary proceeding at 
all. This was the trial of David the brother of Llewellyn 
for treason against Edward I. The trial took place at 
Shrewsbury at a sort of parliament which ^et Sept. 30, 1283. 
^" The sheriff of each county was to return two elected 
" knights, and the governing bodies of twenty cities and 
," boroughs were to return two representatives for each. 
" Eleven earls, ninety -nine barons, and nineteen other men 
" of note, judges, councillors, and constables of castles, were 
" summoned by special writ." " At Shrewsbury accordingly 
" David was tried, condemned, and executed ; his judges were 
" a body chosen from the justices of the Curia Regis under 
" John de Vaux : the assembled baronage watched the trial as 
" his peers, and the Commons must be supposed to have 
" given a moral weight to the proceedings." 

A few 3^ears later, 21 & 22 Edw. 1 (a.d. 1291), a prosecution 
occurred which is recorded in the Parliament Rolls. 

^ The Archbishop of York was " coram ipso domino rege et 

1 There may be some doubt as to treason. See note in 8 St. Tr. 236, in 
FitzHarris's case.' M Stubbs, 116. 

^ 1 Rot. Par. 120. The archbishop denied the purchase of the debt, but 
admitted that its existence came to his knowledge whf n he visited a monastery 



( 



EAP.LY IMPEACHMENTS. 1 47 

" consilio suo arrenatus " for buying a debt due to a Jew who Chap. v. 
had been banished and whose debts had been forfeited to the 
king. In 33 Edw. 1 (A.D. 1304) Nicholas de Segrave was 
accused in parliament by the king of having brought an 
accusation against John Crumbwell whilst both were serving 
in the army against the Scotch, of having waged battle 
against Crumbwell, of having afterwards " adjourned " Crumb- 
well before the King of France, and of having gone to France 
to prosecute CrumbweU leaving, for that purpose, the king's 
army whilst still in danger and against the king's express 
command, thereby "subjiciens et submittens dominium 
" regis et regni AngliaB subjicioni domini regis Francia3." 
To this charge Segrave pleaded guilty, and the king 
required the advice of parliament or rather of his great 
Council ("volens habere avisamentum Comitum Baronum 
" Magnatum et aliorum de Consilio suo ") as to the punish- 
ment to be inflicted. They replied, "quod hujus modi 
" factum meretur poenam amissionis vitse,^ &c." Segrave 
however was pardoned on the terms of giving security 
to go to prison ^"ubi et quando et quotiens dominus rex 
"voluerit." 

In 4 Edw. 3 (1350) a remarkable though anomalous 
proceeding took place in regard to Sir Thomas Berkeley, 
charged with the murder of Edward II. ^ The record throws 
light not only on the functions of parliament but on its 
procedure and on the early form of trial by jury. It is as 
follows : " Sir Thomas de Berkeley came before the king in 
" full parliament and being asked " (allocutus de hoc) 



at Burlington, from which it was due, and that he tohl the prior and convent, 
*' Qnod ])ecuniam illam sana conscientia retinere non posstnt, et (juod sic 
*' facerent quod animas suas salvarent, scd (juod nunquani eis injunxit quod 
** pecuniam illam sibi aut alii nomine predicti Judci solverent." He further 
owned that he had seen the Jew at Paris, who hep^ged him for Ood's sake to 
get him his money. The arclibishop was amerced because he concealed the 
existence of the debt, and because '* contra fidem (j[uam Kegi tenetur injunxit 
'• prafjito Priori et conventui (piod animas suas salvarent ; (piod tantnni 
" valuit <iuajitum si dixisscjt quod Judeo satisfacerent." This seems to admit 
that tlie j)roclamation which required the debtors of Jews to pay tlieir debtH 
to the, king could be obeyed only at some risk to the debtor's soul. 

* The "Ac." probably means forfeiture. 

2 1 Jiot. J'ar. 172, In tlie jdeadings mention is made of '•Nicholas de 
•* Warrewyk (pii soquitur pro ipso domino rege," the style of the Attorney- 
General of Inter times. =• 2 Rot. Par. r»7. 

L 2 



148 ' IMPEACHMENTS UNDER EDWARD III. 

Chap. V. how he could acquit himself of the death of Edward II. 
who had been delivered to his custody and to that of John 
Maltravers, and had been murdered in the castle- of 
Berkeley ? he said he did not consent to it or know of 
it till this parliament. He was asked how he could excuse 
himself, seeing that the castle was his, and the king was 
delivered to him for safe custody ? He replied that the 
castle was his, and that the king was delivered to him 
and Maltravers for safe custody, but that at the time of 
the murder he was lying so ill at Bradley that he could 
remember nothing {qitod nichil ei currehat memorice). He 
was then asked how he could excuse himself when he 
had guards and officers under him ? He replied that he 
put under him guards and officers in whom he trusted 
as he did in himself, and that they with Maltravers had 
charge of the king, and that he was in no way guilty of 
the death of the king or of being accessory to or procuring 
it. Then follows, " et de hoc de bene et malo ponit se super 
" patriam. Ideo venerunt inde jurat' coram domino rege 
" in parliamento suo." Then follow the jurors' names, and 
their finding, " Dicunt quod predictus Thomas de Berkle 
" in nullo est culpabilis "... . " et dicunt quod tempore 
" mortis ejusdem Domini Edwardi Begis patris domini Begis 
" nunc fuit ipse tali infirmitate gravatus apud Bradeleye extra 
" castrum suum predictum quod de vita ejus desperabatur. 
" Ideo idem Thomas inde quietus." 

The record implies, First that in this instance at least jurors 
were introduced into parliament. Next that the accused 
was questioned till a specific defence resting on a particular 
alleged fact was set up by him ; and lastly, that the jurors 
gave their verdict on the special defence as well as generally 
on his guilt or innocence. 

Towards the end of the reign of Edward III. in what was 
known as the Good Parliament (50 Edw. 3, A.D. 1376) oc- 
curred a celebrated series of proceedings which are regarded 
both by Hallam and by Mr. Stubbs as the earliest impeach- 
ment in the full sense of the word known in English 
history. This is no doubt true if by an impeachment is 
meant a trial by the Lords upon an accusation made by the 



IMPEACHMENTS UNDER EDWARD III. 149 

Commons, though, as the cases already referred to show, Chap. V. 
criminal proceedings in parliament were of much greater 
antiquity. The persons impeached were Richard Lyons, 
William Ellis of Yarmouth and John Peake of London 
(the agents and accomplices of Lyons) William Lord Latimer 
and John Lord Neville. ^All of these were charged with 
different kinds of frauds and malpractices connected with 
the revenue. There is a petition in the Parliament Roll 
of this parliament which throws some light on the character of 
these proceedings and to some extent anticipates points long 
afterwards decided. ^ The Commons prayed that all articles of 
impeachment with the matters put forward by the Commons 
which had not then been tried for want of evidence {'jpar 
difaiit de prove) or any other cause should be heard and 
determined by commission by the judges and other lords in 
London and other suitable towns {metres lieux lusoignaUes). 
The king promised to assign suitable justices. 

^ In the following parliament the result of one proceeding 
under this clause is recorded. A petition sets forth that 
Hugh Fastolf had " by malice and hatred of some of his 
" neighbours both by bills previously delivered and by clamour 
" made at the end of the last parliament " been impeached for 
various oppressions and misdeeds, that a commission of Oyer 
and Terminer had accordingly been sent to Suffolk and 
Norfolk " et les copies des ditz Billes issint baillez en 
" Parlement si furent envoiez a mesmes les justices souz 
" le grant seal." Fastolf was tried by no less than seventeen 
inquests and acquitted by all of them. 

This shows that in Edward IIL's time the theory of im- 
peachment as afterwards understood was far from complete. 
It never would have occurred to the parliament which im- 
peached Warren Hastings that at the end of the session the 
case might be sent before a special commission and tried by 
a jury. 

In the reign of Richard H., criminal proceedings in 
Parliament were frequent and important. Thus, in the 



' 2 lioi. Par. 828—826, and 829. - Ih. 8S5. 

' 61 Kdw. 3 (1878—7), 2 rxot. Par. 875. 



^5^ CASE OF ALICE PERREllS. 

CiiAP^V. beginning of the reign ^ several persons were impeached for 
losing towns and other military misconduct in France, ^jji 
1886 Michael de la Pole, Lord Chancellor, was impeached 
for misconduct in his office, and judgment was given that 
certain grants made to him should be set aside, and charters 
and letters patent declared void. There is nothing on the 
face of any of these proceedings which calls for special 
remark. The accusations are specific, and so are the 
answers, which sometimes go into great detail ; and it 
appears that in particular cases witnesses were called and 
fully examined. 

The most remarkable instance of this is to be found in 
the case of ^ Alice Ferrers, who was accused on the part of 
the King, and not, as far as appears, by the Commons, for 
breaking an ordinance by which women in general and she 
in particular had been forbidden to do business for hire and 
by way of maintenance in the King's Court. The charge was 
that she nevertheless had persuaded Edward III. to counter- 
mand the appointment of Sir Nicholas Dagworth to go on 
a certain commission to Ireland, and had persuaded him 
to pardon Richard Lyons as to part of his punishment. 
Dagworth was to go to Ireland to inquire into the official 
conduct there of William of Windsor the husband of 
Alice Ferrers, and she objected to this on the ground that 
Dagworth was Windsor's enemy. Many witnesses were 
examined on the subject, one of whom said, " he never heard 
'' Dame Alice speak to the King on the subject, but he had 
" heard her greatly complain in the King's palace and say 
•" that it was neither law nor reason that Dagworth, who was 
" William de Windsor's enemy, should go to Ireland and in- 
" quire and do justice against him." Twenty wntnesses in 
, all were examined on the occasion, and the principal de- 
positions are entered on the Roll. 

^ Case of John de Gonienys and William Weston, 3 Rot. Par. 10 — 12 
(1377); Cressinghani and Spykesworth, p. 153 (1383) ; Bishop of Norwich, 
p. 153 (1383) ; Elmham and others, p. 156 (1383). 

'^ 3 Rot. Par. 216—219. 

^ lb. 12. " Alice Ferrers fuist fait venir en mesme le Parlement devant les 
" prelates et seigneurs pur y repondre sur certains choses quelles pur lors 
*' serroient surmises envers elle de par le Koi. Alonsr. Richard le Scrop 
** Chivaler seneschal de I'hostel hre Sr le Jin y rehercea en Parlemant," &c. 



APPEALS UNDER HIGHARD II. I5I 

The most remarkable feature in the criminal proceedings Chap. v. 
in parliament in the time of Eichard II. is that it was the 
regular course for private persons, even persons who were 
not members of parliament, to bring accusations of a criminal 
nature in parliament, upon which proceedings were had. 
^ Thus, for instance, in 1384, one John Cavendish, a fishmonger 
of London, impeached Michael de la Pole, the Chancellor, for 
taking a bribe, namely, £40, three yards of scarlet cloth, 
worth thirty-two shillings, given to Otter the Chancellor's 
clerk, and a quantity of herring, sturgeon, and other fish, 
delivered free at his house. The Chancellor swore that he 
was absolutely innocent, that whatever took place between 
Cavendish and Otter was without his knowledge, and that 
he ordered the fish to be paid for as soon as he heard 
they were delivered. After examining witnesses the Lords 
acquitted the Chancellor, and Cavendish was convicted 
of defamation. 

^ So, in 1381, Clyvedon brought a bill of appeal or ac- 
cusation in Parliament against Cogan for a riot at Bridge - 
water, and for forcing the master of the Hospital of St. John 
there to pay money and execute deeds. The bill concludes 
by saying that if Cogan denies the charge Clyvedon is ready 
to prove it by his body according to the law of arms or as the 
court pleases, otherwise than by jury (smoun jper verdit des 
jurrours) " for he says, the said William (Cogan) is rich and 
" he poor, whereby he could never make a jury go against 
" the said William although his cause is as true as that God 
" is in heaven." 

Cogan said he would put himself on a jury, and the 
parties were left to the course of the common law. 

These cases throw some light on the memorable pro- 
ceedings which took place in the later part of the reign of 
Richard II., and which appear not only to have caused his 
deposition, but to have established the law of impeachment 
on its present basis. I refer to the three sets of "appeals'* 

' Z Rnt. Par. 168. "Johaii Cavt'ndi.sh do Londrcs pcHSoner soi ploignaHt 
" <'n le I'arlonient preiiieniTiicnt devant la (^oe en lour iisHoiiiblo on pr«8«n«M» 
•' d'aucuns ProJat/, nt Soigni-g teniporclx illocqopH lors ostant et puis aprcs 
" <lf^vant tousles Prclatz ct Seignrs ostcantz en co Parlemcnt." 

'' lb. 106. 



^52 CASE OF RICHARD Il/s MINISTERS. 

CiiAT^V. or accusations brought against each other by the ministers 
of Richard II. 

^The first set of appeals took place in 1387-8, when the 
Duke of Gloucester (the King's uncle) and several other 
" lords appellants " accused the Archbishop of York, Robert 
de Vere Duke of Ireland, the Earl of Suffolk, Tressilian 
Chief Justice, and Sir Nicholas Brember, Lord Mayor of 
London of high treason. The substance of the charge 
against theni was that they had led Richard II. to misgovern 
in various ways, and in particular that they had induced him 
to resist or evade an act passed in 1386 which practically 
put the Royal Power in commission, and that they had pro- 
cured an opinion from five judges and a serjeant-at-law that 
the commission so issued was void, and that those who pro- 
cured it were liable to be punished as traitors. This was 
elaborated into thirty-nine charges. 2 Xhe king referred the 
charges " to the judges, Serjeants, and other sages of the law 
" of the realm" (i.e. of the common law) "and also to the 
" sages of the civil law, who were charged by the king 
" to give their opinion to the Lords of Parliament, to 
" proceed duly in the cause of the said appeal. The said 
" judges, Serjeants, and sages of the common law and also of 
" the civil law took the matter into consideration, and avowed 
" to the Lords of Parliament that they had seen and heard 
" the' tenor of the appeal, and that it was not made ac- 
" cording to the requisitions of either law. UiDon which the 
" Lords of Parliament considered the matter, and with the 
" assent of the king, and by their common assent, it was 
" declared that in so high a crime as is alleged in this appeal 
" which touches the person of our lord the king and the 
" state of his whole realm, and which is said to be committed 
" by peers of the realm and others, the cause must not be 
" decided elsewhere than in parliament, nor by any other 
" law than the law and course of .parliament, and that it 
*' appertains to the Lords of Parliament and to their franchise 

1 3 Hot. Par. 229—244. 

2 p_ 236. This jjassage is quoted by Mr. Stubbs. I think he overlooks 
the opposition betAveen the common and the civil or Koman law. He seems 
to take "civil " in the sense of ordinary law as opposed to parliamentary 
privilege. 1 do not think this can be the meaning of the passage. 



SECOND SET OF APPEALS UNDER RICHARD II. 153 

" and liberty by the ancient custom of parliament to be Chap. V 
" judges in such cases, and to adjudge them with the king's 
" assent. And that so it shall be done in this case by award 
" of parliament because this realm of England never was and 
" it is not the intent of the king or the lords that it ever 
" should be ruled or governed by the Civil Law. Moreover 
" they do not mean to rule or govern so great a case as this 
" appeal, which as aforesaid is not to be tried or determined 
" out of parliament, by the course, process and order used in 
" any inferior court or place in the realm, which courts and 
" places are only to execute the ancient laws and customs of 
" the realm and the ordinances and establishments of par- 
" liament." The appeal was accordingly held good, and 
fourteen out of the thirty-nine charges contained in it were 
held to amount to treason. The appellees w^ere convicted, 
and some executed as traitors, and others banished for life 
and deprived of their property. Other persons besides the 
original appellees were implicated in the matter, and in 
some cases condemned and executed, but this belongs rather 
to the general history of the time than to the history of im- 
peachments. ^A sum of £20,000 was voted to the lords 
appellants for their costs and charged on the subsidy granted 
at the end of the session. 

After an interval of ten years, the king's party in their 
turn, appealed or accused of treason by "accroaching" the 
royal power, the Duke of Gloucester, and the Earls of 
Arundel and ^ Warwick. The Earl of Arundel was con- 
victed and executed. The Duke of Gloucester was murdered 
at Calais, and the Earl of Warwick was tried and sentenced 
to be hung, drawn, and quartered, though his sentence was 
changed into one of imprisonment for life in the Isle of Mau. 
The principal point urged against him was, that on the 
trial of Sir Simon Burley and others, who were appealed 
by the original Lords Appellants, " Warwick with others, 

^ 3 Rot. Par. 245. " Vint iriillo livor.s de nu'ino U; bubsido, pur lour 
" custa^cs,travail8'et (Icspeuscs faitcs a di-vaiit jiur ronoiir profit, et salvHtion 
" de Koi (;t do tout le roialme." The costs wcro principally military, as tlio 
FiOrds Ai)pcllant had raised troops to sujiport th<'ir cause. See StuMm, Cr>na. 
Uial. 11. 470—482, 491—497, and iii. 11», 20, on the transaction?! here referred 
to. 3 //». 877. 



154 APPEALS UNDER HENRY IV. 

Chap. V. "made the king come to a secret place at Westminster/' 
and there forced him against his own judgment to say that 
Burley was guilty, though he thought, and had previously 
said, he was not. This looks as if on these trials, at all 
events, the king personally acted as one of the judges. 

In the course of another two years, Richard was deposed, 
and in the first parliament of Henry IV. (1399), the second 
set of appellants ^ were impeached by the Commons for 
their appeal. They were accordingly questioned about the 
appeals, and gave answers which threw light on the nature 
of the proceeding. They all said that they acted under 
compulsion, and one of them (the Earl of Gloucester) 
gave a lively account of his conduct. He said that, "on 
" St. Oswald's day, as the late king sat at meat in the great 
" hall of Nottingham Castle, and he, the Earl, also sat at 
" meat at a side table in the same hall, the late king sent 
** him a message to get up and come to him. Thereupon the 
" Earl went to his room in the keep of the said castle, and 
" put on a habergeon and his sword, and took with him 
** about six men (vadletz), supposing he would have to arrest 
" some one ; and when he came outside the gate, he found 
" there the other appellants, and amongst them William Le 
" Scrop, reading the bill of appeal, the greater part of which 
•' was read before he came, and just then the late king sent 
" to tell them to come on, and asked why they waited so 
" long. And thus came the name of the Earl of Gloucester 
" to be put into the appeal, but he heard nothing of it from 
*' any person ; but for fear of death, he durst not oppose the 
*' orders of the late king as to the prosecution of the appeal." 
Sir William Thyrning, the Lord Chief Justice, made a 
speech which is entered 2 in the Parliament Rolls, to the 
effect that the proceedings of the appellants had been so 
irregular, that the common law had made no provision 
for them, and that their misdoings must accordingly be 

^ 3 Eot. Par. 449. "Les Communes du Paiiement monstrerent au 
" Roy," &c. 

- Jb. 451. It is in English, and is a curious specimen of tlie transition 
state of tlie language. " The Lords . . . deme and ajuggen and decreen 
"that the Dukes of Aumarle, Surr, and Excestre, that bene here present 
*' lese and forgo fro hem and her heirs," &c. 



APPEALS IN PARLIAMENT ABOLISHED. 155 

dealt with specially by the king in parliament. He then Chap. V. 

declared the judgment of parliament to be, that they should 

be degraded from their rank, and incur other forfeitures. 

These proceedings took place on the 6th October, 1399. 

^ On the 3rd November, ^ the Commons by a petition, 

*• showed to the king, that judgments in parliament belong 

" only to the king, and the Lords, and not to the Commons 

" unless the king, of his special grace, pleases to show them 

" the judgment," (this they said) "for their ease, that no 

" record should be made in parliament against the Commons, 

" that they are or shall be parties to any judgments given, 

" or to be given afterwards in parliament. To which it 

" was answered by the i\rchbishop of Canterbury by com- 

" mand of the king, that the Commons are petitioners and 

" demanders " (plaintiffs or accusers), " and that the king 

" and the Lords from all time have had, and still have by 

" right judgment in parliament as the Commons have shown. 

" But in making statutes, and granting aids and subsidies 

" and such things for the common profit of the realm, the 

" king's special will is to have their advice and consent ; 

" and this order is to be observed for all time to come." 

In the same parliament was passed, ^the statute 1 Hen. 4, 
c. 14, which provides, that all appeals of things done in the 
realm, shall be tried and determined by the laws of the 
realm {i.e., at common law), that all appeals of things done 
out of the realm, shall be tried by the constable and mar- 
shal, and " that no appeals be from henceforth made, or 
" anywise pursued in parliament in any time to come." 

I have noticed these proceedings in detail because they 
throw light upon the manner in which the present theory of 
the power of parliament as to impeachments came to be legally 
settled — a point which historians more interested in politi- 
cal events than in legal histoiy have not I think alto- 
gether cleared up. Told shortly the history seems to be this. 

^ " Lo Lundy en le Fest de Seinte Feye la Virgino." 8 Hot. Par. 449. 

'■' Ih. 427. 

^ This statute was n^jicalcd liy tlie Statute Lnw Revision Act, 1863 (2fi 
9r. 27 Vic. c. I2f>). I think that a great constitutional and historical landnuirk 
nii<;ht liave been spared. The Act is only fourteen lines in length. The 
i<t|H!nl, however, does not revive the jiowcu* of appealing in rarlianient, us all 
a]iiK;als in criniinjil cases were abolished by 69 Geo. 3, c. 46, 



15^ ESTABLISHMENT OF PRINCIPLES AS TO IMPEACHMENTS. 

Chap. V. The judicial powers of the Curia Regis survived when parlia- 
ment assumed its present character. They were exercised in 
no very regular way throughout the reigns of Edward I. and 
Edward III. In the later part of the reign of Edward III. 
the House of Commons by assuming the position of accusers 
imposed a severe check on the proceedings of what we 
should now describe as ministers of state, but concurrently 
with this development of their powers there arose a prac- 
tice of " appeal " or private accusation which enabled any 
one to bring any one else to trial for any offence before 
parliament. In some cases this practice appears to have 
worked worse than the unlimited power of private accusa- 
tion which exists at the present day, and in the hands of a 
fierce and turbulent feudal nobility who could enforce their 
accusations by armies of retainers it became an abuse which 
largely contributed to the revolution by which Richard II. 
was deposed and Henry IV. set on the throne. This in 
its turn led to the Wars of the Roses, the destruction of the 
feudal nobility, and the establishment of the semi-despotic 
authority of the Tudors. It is not surprising that this should 
have been the case when we read the account given in the 
Parliament Rolls of the principles on which Parliament pro- 
ceeded in such cases. The Lords in 1388 distinctly repu- 
diate the authority of all law whatever except " the Law of 
Parliament" a phrase for that which parliament judging 
ex post facto might consider reasonable. In other w^ords 
their claim was to be at once accusers, judges, and ex j^ost 
. facto legislators with regard to the exigency, real or sup- 
posed, of the particular case before them. The practical 
effect of this was that in the course of ten years accusers 
and accused changed places, the survivors and representa- 
tives of those who had been put to death for accroaching 
royal power, succeeding in putting to death for the same 
offence those who had destroyed their predecessors. 

The statute 1 Hen. 4, c. 14, put an end to this great 
evil, and went a great way towards establishing the later 
view of parliamentary impeachment according to which 
there must be an accusation by the Commons and a trial 
before the Lords. From that time there is a marked chansfe 



IMPEACHMENTS SUSPENDED FOR 1 62 YEARS. 



157 



in the character of the prosecutions which took place in Chap. V. 
parliament. Several such proceedings occurred, some of 
which cannot be reckoned as impeachments in the full and 
proper sense of the word. ^Thus in 140f Thomas Erp^mg- 
ham accused the Bishop of Norwich of some offence, it does 
not appear what, but the King ordered them to be reconciled, 
forgiving the Bishop, who he said had erred negligently, and 
thanking Erpingham and assuring him that he believed him 
to have acted from zeal to his service. It is not at all 
unlikely that the King thought that the proceeding w^as 
opposed to the statute of the previous year. In the case of 
the Percies (7 & 8 Hen. 4, A.D. 1406) for the rebellion in the 
north, ending with the Battle of Shrewsbury, there was a 
question as to the manner in which proceedings were to be 
taken, and the peers upon deliberation determined that they 
should be '' soloiic la ley et usage d'armesy The record then sets 
forth the offences charged, proclamations made for the appear- 
ance of the parties, and the non-appearance of ^ Henry Percy 
and Bardolf, and proceeds to convict them of treason and 
subject them to the penalties for that offence. 

In ^1450 the Duke of Suffolk was impeached for high 
treason, and one ^ Tailboys for an attempt to murder Ralph 
Lord Cromwell. ^Lastly, in 1459 Lord Stanley was impeached 
for not sending his troops to the Battle of Bloreheath. 

All these impeachments appear to have been conducted 
according to what would now be recognised as the regu- 
lar course of proceeding. I may, however, observe that 
in 1390 or 1400 a case occurred which contradicts the 
principle subsequently established as to pardons. ^ It appears 

* " Le^i seant en son see Roiale de son bouche propre monstra et dist a 
" dit Mons Thomas coment mome Cfiluy Moils Thomas devant ces heures 
" avoit baillez a ifre dit Sr le Roy une Bille de certeines empeschementz 
•• touohantz le (lit Kvcsqne, du quel fait meme iire Sr le Roy remorcia le dit 
" Mons Thomas et dist qu'il savoit bien ii ceo q meme celny Moils Thomas 
"avoit fait a coll temps feust fait ])ur Ics grantz zcle chierto et tcndrcsso 
** queux il avoit a sa pcTsone," &c. The, record cuds by saying that tlie arcli- 
bishop took the hands of the bishop and Erpingham, and " Ics list ])rcndro 
" I'un I'autre parlamagnoet leur baiser ensemble en signe d'amour pfirpctud 
*' entre eux en tout temps advenir." 3 Itut. Par. 466. Compare Shakspcare's 
mention of Krpinf^ham in Henry V. 

3 Thomas Percy was killed at Shrewsbury but his father survived the 
battle for three years. 

3 5 Rot. Par, 176. This is Shakapeare's Suffolk in Hrnr^i VI. 

* lb. 200. « lb 869. » 3 Rot. Par. 468. 



158 -IMPEACHMENTS REVIVED UNDER JAMES I. 

Chap. V. from a petition of 1400 that one Bagot had been impeached 
by the Commons of " pleuseurs horribles faits et mespri- 
" sions." He was put to answer before the Lords and pro- 
duced a " chartre generale de pardon " on which the Lords 
considered " q le dit Moufs Wilham ne deust etre empesche 
" ne mys a response par la loie." 

It appears from all this that, with insignificant exceptions, 
the present law and practice as to parliamentary impeach- 
ments was established as the result of the transactions above 
referred to, which took place in the latter part of the reign 
of Edward III. and the reign of Richard II. 

From 1459 to 1621, a period of 162 years, no impeachment 
appears to have taken place, at least none is mentioned either 
in the Parliament Rolls or the Lords Journals, so far as 
appears from the elaborate ^indices to those collections. It 
is not quite easy to give a full explanation for this, though 
some of the reasons are obvious. The greatly increased 
judicial power of the Privy Council which was vested in the 
Star Chamber affords one reason. Such cases as those of 
Cogan were no doubt more easily and speedily dealt with 
there than by an impeachment. 

The immense increase of royal power during the Tudor 
period would supply another reason. It was not till parlia- 
ment reasserted itself under James I. and Charles I. that 
it became natural or perhaps possible to use impeachments 
for the punishment of ministers considered corrupt or oppres- 
sive. If the King himself wished to punish a minister a 
bill of attainder was more convenient than an impeachment 
because it superseded the necessity for a trial ; and though our 
accounts of the earlier impeachments are imperfect, enough 
remains to show that in many cases at least witnesses were 
examined and some proceedings in the nature of a trial had. 

Whatever the reasons may have been the fact is that 
the next ^regular impeachment to Lord Stanley's, in 1459, 
was that of Sir Giles Mompesson in 1621. From that 
date to the present day there have been fifty-four impeach- 

^ The^index to the Parliament Rolls is a folio volume of 1036 pages. The 
calendar to the Lords' Journals fills two folios. 

2 Articles of accusation were presented in Parliament in the cases of 
Wolsey, Lord Seymour of Sudeley, and perhaps some others. 



IMPEACHMENTS SUBSEQUENT TO JAMES I. 



159 



ments, so far as I have ascertained from the calendar to the Chap. V. 
Lords' Journals. A list of them will be found in the foot- 
note.i The proceedings under some of them have been 
amongst the most memorable events in our general his- 
tory, but little need be said of them in reference to our 
judicial history. They repi-esent for the most part the 



1 1621. 
Sir Giles Morapesson. 
Lord Bacon. 
Sir F. Mitchell. 
Sir H. Yelverton. 

1625. 
The Earl of Middlesex. 

1626. 

The Earl of Bristol. 

The Duke of Buckingham. 

1640. 

The Earl of Strafford. 

The Lord Keeper Fynch. 

Sir E. Barkly and other judges. 

1641. 
Sir G. Ratcliffe. 

1642. 

Archbishop Laud. 
Dr. Cosens. 
Bishop Wren.' 
Daniel O'Neale. 
Sir E. Herbert. 
Sir E. Deriiig. 
Mr. Strode. 
Mr. Spenser. 
Nine Lords. 
Sir R. Gurney. 
Mr. .Hastings, 
Marquis of Hfrtford. 
Lord Strange. 
Mr. Wilde. 
Mr. Broccas. 



1601. 



Mr. Drake. 



1666. 
Lord Mordnunt. 

1667. 
Lord Clarendon. 

1668. 
Sir W. Penn. 



1678. 
Lord Stafford and four other Roman 

Catholic lords. 
Lord Danby. 

1680. 

Edward Seymour. 
Sir W. Scroggs. 
Earl of Tyrone. 



Fitz-Harris. 



1681. 



1689. 

Sir A. Blair and others. 

Lord Salisbury. 

Earl of Peterborough. 



Duke of Leeds. 



1695. 



1698. 
John Goudet and others. 



1701. 



Lord Portland. 
Lord Somers. 
Lord Halifax. 



Dr. Sacheverell. 



1709. 



1715. 



Lord Oxford. 
Lord Bolingbroke. 
Duke of Ornioud. 
Earl of Strafford. 
Lord Derwentwator. 

1724. 
Lord Macclesfield. 



Lord Lovat. 



1746. 



1787. 



Warren Hastings. 



1805. 



Lord M.'lvilie. 



i6o 



IMPEACHMENT OF HASTINGS. 



^^^^^- working of a regular and well understood institution. Twice 
in the reign of Charles I. attempts were made to break in 
upon the established theory of impeachment, once in the 
case of the Earl of Bristol, whom the king attempted to 
accuse of treason in the House of Lords without any impeach- 
ment by the Commons or any indictment found by a grand 
jury, and once in the famous case of the five members. The 
list given in the note shows that the really important period, 
in the modern history of impeachment, was the seventeenth 
century, and particularly the reign of Charles I. The 
power of impeachment was the weapon by which the 
parliament fought their battle from 1640 to 1642. In the 
eighteenth century its importance declined, and it became a 
subject rather of constitutional and antiquarian curiosity 
than of practical importance. ^ The impeachment of Warren 
Hastings is, I think, a blot on the judicial history of the 
country. It was monstrous that a man should be tortured, at 
irregular intervals, for seven years, in order that a singularly 
incompetent tribunal might be addressed before an excited 
audience by Burke and Sheridan, in language far removed 
from the calmness with which an advocate for the prosecution 
ought to address a criminal court. The acquittal of the de- 
fendant shows conclusively that *if a guilty man did not 
escape, an innocent man was cruelly oppressed. 

It is hardly probable that so cumbrous and unsatisfactory 
a mode of procedure will ever be resorted to again. The full 
establishment of popular government, and the close super- 
intendence and immediate control exercised over all public 
officers whatever by parliament, make it not only unlikely 
that the sort of crimes for which men used to be impeached 
should be committed, but extremely difficult to commit them. 
In order to complete what I have to say on the subject of 
the criminal jurisdiction of Parliament I ought to notice bills 
of attainder and of pains and penalties. Such a bill is an 

1 Pitt's India Bill, 24 Geo. 3, sess. 2, c. 25 (amended by 26 Geo. 3, c. 57), 
provided a special court for the trial of offences committed in India. It was 
to be composed of three judges, five members of the House of Lords, and seven 
members of the House of Commons. The court has never sat. It was con- 
stituted before "Warren Hastings was impeached, and indeed before his return 
from India. I suppose the act was considered not to be retrospective, or 
Hastings might have been tried under it. 



ACTS OF ATTAINDER. l6l 

act of parliament for putting a man to death or for otherwise Chap, v, 

punishing him without trial in the usual form. I am un- 

able to say what was the first act of this kind, but the first 

that I am prepared to refer to is the ^act of attainder of 

the Duke of Clarence, passed in 1477 (17 Edw. 4). It is 

very long and oratorical, and after setting out at length the 

offences imputed to Clarence, enacts " that the said George 

" Duke of Clarence be convicted and atteynted of high 

" treason." The act is followed by the appointment of the 

Duke of Buckingham as lord high steward for that occasion 

to do execution. Bills of attainder were, in the reign of 

Henry VIIL, used instead of impeachments ; as for instance 

in the cases of Wolsey, Thomas Cromwell, Queen Katharine 

Howard, the Duke of Norfolk, and the Earl of Surrey. They 

have occurred occasionally in our later history. The most 

memorable case is that of Lord Strafford. Other instances 

are those of Lord Danby, the Duke of Monmouth, and Sir 

John Fenwick. As instances of a bill of pains and penalties 

I may refer to the bill against Bishop Atterbury, and to the 

bill against Queen Caroline, which will probably long continue 

to be referred to as the last instance of such legislation. 

Thus far I have considered the extent of the criminal 
jurisdiction of Parliament, when set in motion by an im- 
peachment by the Commons who are said to be, for that 
purpose, the grand jury of the whole nation. I proceed now 
to consider the special criminal jurisdiction which the House 
of Lords possesses over Peers of Parliament. It extends only 
to felonies, for in cases of misdemeanour a peer may be tried 
like a commoner. When Parliament is sitting the tribunal 
is the House of Lords, which is usually, though not neces- 
sarily, presided' over by a Lord High Steward appointed for 
the purpose. In this case the peers themselves are the 
judges, the Lord High Steward being only the president of 
the court. 

If Parliament is not sitting the court is the Court of the 
Lord High Steward, who is the only judge of it, such other 
peers as may attend the court acting as a jury, under the 
name of the " Lords Triers." 

• 6 Hot. Par. 19y. 
VOL. I. M 



1 62 TRIAL OF PEERS BY PEERS. 

Chap. V. These courts are of the most remote antiquity, and may 
indeed be regarded as remnants of the old Curia Regis, which 
have survived without material alteration the vicissitudes of 
eight centuries. The courts can hardly be said to have any 
history, though it will be worth while to mention a few 
points connected with them. 

I have sufficiently illustrated the judicial functions and 
powers of the Curia Regis itself. * The famous passage in 
Magna Charta about the " legale judicium parium suorum " 
appears to me to refer to the trial of peers in the King's 
Court rather than to trial by jury. The 21st Article of 
Magna Charta has a similar expression : " Comites et barones 
" non amercientur nisi per pares suos et non nisi secundum 
" modum delicti." I do not think that the expression " trial 
" by jury " would have been used, or would have been in- 
telligible, in King John's time. It would have been de- 
scribed rather as the taking of an inquisition by an assize, 
or by lawful men, and is I think referred to b\^ the words 
" vel per legem terrse." These would include not only 
inquests taken by jurors on the execution of commissions of 
eyre, gaol delivery and oyer and terminer, but also trials by 
combat or by ordeal, each of which was part of the lex 
terrge at the date of Magna Charta. In short, I should be 
inclined to construe " nullus liber homo " distributively — 

^ ' * TTullus liber homo capiatur vel imprisonetur ant dissaisiatur, aut 
' * utlagetur, aut exiiletur, aut aliquo moclo destruatur nee super eum ibimus 
" nee super eum mittemus, nisi per legale judicium parium suorum vel per 
" legem terrse." Stubbs, Charters, 301. The following observation on this 
passage is made in the Report on the Dignity of the Peer (i. 450). "The 
*' right to the judicium parium asserted by that charter was probably the 
" ancient law of the kingdom, and therefore when a person of rank was 
' ' accused of any offence for which the law required trial by his peers, it was 
' ' necessary that the King should summon to the Court of Justice by which 
" the person accused was to be tried the peers of the accused. The persons 
* ' attending on such occasions are sometimes described by the general words 
"• proceres, or 'magnates,' and sometimes more particularly as Archbishops, 
* ' Bishops, Abbots, Priors, Earls, and Barons, with the addition also some- 
" times of the general words proceres, or 'magnates.' It is probable that 
' ' many persons answering the several descriptions attended on extraordinary 
"occasions which required their presence." This most elaborate import is 
occupied almost entirely with the legislative functions of the peerage, and 
says hardly anything of their judicial functions. The expression "judicium 
parium " is however older than Magna Charta. In the leges Henrici Piimi 
xxxi. 7 (Thorpe i. 534), this passage occurs: " Unusquisque per pares suos 
" judicandus est, et ejusdem provincise." This however appears from 
xxix. i. to apply to "barones comitatus." See too in reference to this matter 
the trial of Hugo in 1303, p. 260, post. 



CASE OF EARL OF LANCASTER. 1 63 

"no free man shall be taken, &c., except (if he is one of the Chap. V, 
" vassals of the King's Court J by the lawful judgment of his 
" peers, or (if he is not such a vassal) by the law of the land, 
" i.e. the ordinary course of justice." However this may have 
been, the right of the peers to be tried by their peers for 
treason or felony has never at any period of English history 
been either questioned or invaded, or modified in any way, 
with some slight exceptions. 

I will give one or two instances of its solemn recognition. 
1 In 1322 Thomas of Lancaster was put to death in a sum- 
mary way by Edward II. In 1327 the judgment against 
him was reversed upon a writ of error, one of the principal 
errors assigned being " quod cum predictus Thomas comes 
" fuisset unus Parium et Magnatum regni, et in Magna 
" Carta de Libertatibus Angl' contineatur quod " (the well- 
known passage is here quoted) ''predictus Thomas comes . . 
" . . morti adjudicatus est absque arenamento seu respon- 
" sione seu legali judicio parium suorum." ^In 4 Edw. 3 
(1330) Roger Mortimer and his accomplice Simon de Bere- 
ford were charged in Parliament with treason. The " earls, 
" barons, and peers " examined the articles alleged against 
Mortimer, convicted him of treason, and sentenced him to 
death. As to Bereford, "our lord the King charged the 
" said earls, barons, and peers, to give right and lawful 
" judgment as appertains to them on Simon de Bereford, 
" Knight " . . . . " And the earls, barons, and pe€rs re- 
" turned to the King, and said all with one voice that the 
" said Bereford was not their peer, wherefore they were not 
" bound to try him as a peer; nevertheless, as he was a 
" notorious traitor, they sentenced him to be drawn and 
•' hung." 

The right of peers to be tried in Parliament was affirmed 
by "Statute in the year 1341 (15 Edw. 3), which recited 
that peers of the realm had been arrested, imprisoned, sub- 
jected to forfeitures, and in some cases to death without 
judgment of their peers, and enacted that for the future 

' 2 Hot. Par. n, 6. 

'-* Ih. .'>y. S«!(! HotiK! remarks oil tl:(! irn'^ulaiity of tliiH procniMliiig in licpuH 
on Di(jiiity of a Peer, i. p. 291), mihI rmtlicr n-iimik.s on tlic cu8« of Borkeli'y 
(meiitioiied above) at p. 301. *• //;. 182. 

M 2 



164 



COUKT OF LORD HIGH STEWARD. 



C hap. V. << j^q peer of the realm, officer, or other, on account of his 
" office, or for things touching his office," should be liable to 
be tried or punished '* except by award of the said peers in 
Parliament ; " and that if any peer submitted to be judged 
or to answer elsewhere, that was not to prejudice the rights 
of other peers or his own rights on other occasions. 

This statute was repealed in 1343, ^but with this singular 
reservation : *' as some of the articles comprised in the statute 
" are reasonable and in accordance with law and reason, those 
" articles and the others agreed upon in this Parliament are 
" to be made into a new statute." Whatever may have been 
the effect of the repeal, it does not affvjct the recognition of 
the principle made by the statute. It must be observed, 
however, that the statute went far beyond what has ever 
since been recognised as the law, for it applies to all offences 
whatever, and is not confined to treason and felony. I am 
unable to give the history of the limitation of the privilege 
of peers to cases of treason and felony. It is, however, appa- 
rently as old as 1442, for in that year an act (20 Hen. 6, 
c. 9) was passed, which recites that although Magna Charta 
provides that " nullus liber homo " shall be punished except by 
judgment of his peers, " n'est my mention fait coment fem- 
*' mes, dames de graunde estate par cause de leurs barons 
" peres de la terre covertez or soulez," are to be tried upon 
indictments of treason or felony, and it provides that they 
shall be tried like other peers of the realm. It seems clear 
from this that a peer was not at that time entitled to be tried 
by his peers for a misdemeanour. 

The Court of the Lord High Steward is probably a rem- 
nant of the Curia Regis, which has survived unimpaired from 
the Conquest at least, and probably from earlier times. The 
Lord High Steward was one of the great officers of the Curia 
Regis, and in ^ Madox may be seen a collection of a great 
number of records and notices by historical writers relating 
to the different holders of the office, and to similar offices in 
Normandy, France, and Spain. The steward of Arragon had 
" a great judicial power, for he had cognizance of all causes 
" and quarrels, except in certain cases reserved to the King's 
1 2 Rot. Par. 139. 2 j j^^^^ ^xch. 48. 



1 

{ 



PROCEDURE AGAINST PEERS. 



165 



" own cognizance, and when he was present in any city or Chap. V. 
'' town whatever, all causes before any other judge were to 
" cease, if he so commanded." The judicial officer in all the 
manor courts was, as indeed he still is, called the Steward. 

According to ^ Coke the office of High Steward was here- 
ditary till the time of Henry IV., after which it was granted 
hue vice when an occasion arose for the services of such 
an officer either at the trial of a peer or at a coronation. 

The only legislative enactment which has taken place 
in relation to these courts is 7 & 8 Will. 3, c. S, which 
provides that upon the trial of any peer or peeress for 
treason or misprision, all the peers who have a right to sit 
and vote in Parliament shall be duly summoned, twenty days • 
at least before every such trial, to appear at every such trial, 
and that every peer so summoned, and appearing at such 
trial, shall vote in the trial. 

The object of this statute was to remedy an abuse which 
formerly existed in the case of trials before the Court of the 
Lord High Steward. The Lord High Steward summoned such 
and so many Lords Triers as he thought fit, and no one who 
was not so summoned had a right to take part in the trial.'' 

Indictments upon which the House of Lords or the Court 
of the Lord High Steward proceed may be and are found, 
like other indictments, either in the Queen's Bench division 
or on circuit, and I suppose they might be found at the 
Quarter Sessions, if a peer committed an offence cognizable 
there. When so found they are removed by certiorari into 
the Court before which they are to be tried. 

There have been four trials of peers in the House of Lords 
since the end of the reign of George II., viz., Lord Ferrers for 
murder in 1760; Lord Byron for murder in 1765; the 
Duchess of Kingston for bigamy in 1776 ; and Lord Cardigan 
in 1841. The trial of Lord Delamere for treason in 1686, 
before Jeffreys, is, I believe, the last instance of a trial in the 
Court of the Lord High Steward. 

* Coko, 4th Inst. .'JS. The dfjrivation of tlu; ofTico according to Cokci was 
thus : — T)io Ejirls of Leicester were High Stewards till Simon de Montfort 
forfeited the, office to Henry III. Henry grantcid tlie officer and the earldom to 
his second son, Edmond, whence it desceiKhidto Henry of Bolingbroke, son and 
lieir of John of Gaunt, and afterwards Henry IV. 



1 66 CRIMINAL JURISDICTION OF PRIVY COUNCIL. 



CHAPTER VI. 

THE CRIMINAL JURISDICTION OF THE PRIVY COUNCIL. 

Chap. VI. The growth of the Courts of Equity forms one of its most 
important chapters in the history of our law. These courts 
supplied the defects of the crude and meagre system which 
constituted the common law, by the introduction of remedies 
unknown to it, and by the enforcement of obligations which 
it did not recognize. To describe the steps by which this 
was done does not fall within the scope of this work, but it 
illustrates an analogous process with reference to the criminal 
law, which, after making much progress, was brought to an 
abrupt conclusion by the legislature in consequence of the 
way in which it was abused. I refer to the criminal jurisdic- 
tion of the Council as exercised by the famous Court of 
Star Chamber. Several other analogous courts exercised a 
similar jurisdiction in particular places. The most important 
of these were the Court of the President of the North and 
the Court of the Marches of Wales. They have not, how- 
ever, left such traces either in the law itself or in history 
as to make it worth while to treat of them at length. The 
case is different with respect to the judicial authority of the 
Privy Council. Not only did its decisions leave deep traces 
both on our law and on our history, but it is closely connected 
with the body which to this day holds the position of the Su- 
preme Court of Appeal in all criminal cases arising in any of 
Her Majesty's dominions beyond the seas — the Judicial Com- 
mittee of the Privy Council. ^ The history is as follows : — 

1 The authorities for what follows are Hallam, Middle Ages, iii. 138-147 
(ed. 1855) ; Hallam, Oonst. Hist. i. 48-55, 230-233, &c., and ii. 29-31, &c. ; 



b 



ORIGIN OF JURISDICTION OF COUNCIL. 167 

T have already described the constitution of the Curia Chap. vi. 
Eegis and the manner in which the Courts of Common Law 
were derived from it. Its relation to Parliament has been 
traced by others, and need not be mentioned here. It also 
(as I have said) falls outside of my subject to give any 
account of the origin or gradual development of the judicial 
authority of the Lord Chancellor, who was one of its great 
officers ; but I must add to what has already been said that, 
after throwing off the great branches already enumerated the 
Curia Regis still continued to occupy a position corresponding 
to that of the Cabinet or rather of the Ministry of our own 
day, but of greater importance, as it had judicial as well 
as executive functions. In this capacity it was called the 
Council, and as time went on three several bodies so called 
came to be distinguished by different titles, namely (1) the 
Great Council of the Nation or Parliament ; (2) the Council ; 
(3) the Privy Council. It is a matter of great difficulty to 
distinguish these three bodies from each other in the early 
stages of their history. I need say nothing as to the diffi- 
culty of distinguishing between councils and parliaments ; 
nor is it necessary to my present purpose to go beyond a 
mere mention of the difficulty of discriminating between the 
body called the Council and the House of Lords on the one 
hand, and the Privy Council on the other. A full collection 
of all that is known on these subjects will be found in the 
works of the writers already referred to. 

The leading points in the history of the judicial authority 
of the Council are these : It took from the earliest times a 
part in the administration of justice, which was viewed with 
great suspicion by Parliament, and was made the subject of 
remonstrance by them on various occasions in the course of 

Palgrave's Essay on the Original Autltorily of the King's Council ; Hudson's 
"Treatise on the vStar-Chamher," in Collectanea Juridica, vol. ii. The 
passages referred to in Hal lam are little more than an ahatract of what is said 
l)y Palgrave and Hndsoii. A note in the last-mentioned treatise says that a 
MS. copy of it contains a memorandum purporting to be signed l>y J. Finch, 
(!hief .nistice of the Court of Common J'leas, and afterwards Ixn-d Keeper, 
which says, " This Treatise was composed l)y William Hudson, of (Jniy's 
" Inn, Ks(iuire, one very much practised, and of great i'xi)erience in the Siar 
" ChamluM-, and my very affoctionat<? friend," TIm! not(! in (juestion also nd'ers 
to a reference made to it V)y liOnl Manslield in Wilkes's (tasc, 4 Hurr. 2551. 
The treatise is singuhuly well written and full of curious inforniatinn. 



1 68 COURT OF STAR CHAMBER. 

Chap. VI, the fourteenth and fifteenth centuries. Notwithstanding these 
remonstrances, and also notwithstanding the provisions of 
several statutes on the subject, the jurisdiction of the 
Council continued and increased, and it ultimately established 
itself as one of the recognised institutions of the country. 

The Council when acting in its judicial capacity ^ " held its 
** sittings in the ' Starred Chamber,' an apartment situated 
" in the outermost quadrangle of the palace, next to the 
" bank of the river, and consequently easily accessible to the 
" suitors, and which at length was permanently appropriated 
" to the use of the Council. The ' lords sitting in the Sterre 
^* ' Chamber ' became a phrase .... and we can hardly 
" doubt that this circumstance contributed to assist the 
" Council in maintaining their authority." 

The Court of Star Chamber had become an established 
institution by the reign of Henry VII. Early in that reign 
a statute was passed (3 Hen. 7, c. 1), which, though it 
did not, as has been sometimes supposed, create the court, 
conferred special powers on some of its members. 

The court rose to the height of its influence under Eliza- 
beth. It was regarded under James I. and Charles I. as 
oppressive, and was finally abolished in 1640, by 16 Chas. 1, 
c. 10. This celebrated Act recites the different statutes 
bearing on the subject, declares that the proceedings, cen- 
sures, and " decrees of the court have by experience been 
" found to be an intolerable burden to the subjects, and the 
*' means to introduce an arbitrary power and government," 
and enacts that the Court of Star Chamber, and all similar 
courts, and particularly the Courts of the Council of the 
Marches of Wales, the President and '^Council of the North, 
the Duchy of Lancaster, and the Court of Exch-equer of the 
County Palatine of Chester, shall be abolished, and that no 
similar court shall be established for the future. 

1 Palgrave, 38. 

2 The words of the Act (s. 4) are: "The like jurisdiction now used and 
** exercised" in th<e •courts named "shall be also repealed and absolutely 
" revoked and made void.''' The Court of Star Chamber was dissolved (s. 3), 
but the other courts were not dissolved in terms. The " Court holden before 
" the President and Council of the Marches of Wales" seems to have sur- 
vived for forty-eight years, as it was abolished in 1688 by 1 Will. & Mary, 
c. 27. 



EARLY HISTORY OF COUNCIL. 1 69 

It is unnecessary to dwell in this place upon events which Chap. VI. 
fill so large a space in the general history of the country, but 
the earlier history of the Council is less well known than the 
events which led to its fall. 

^ " It seems," says Sir F. Palgrave, " that in the reign of 
" Henry III. the Council was considered as a Court of Peers 
" within the terms of Magna Charta ; and before which, as a 
*' court of original jurisdiction, the rights of tenants holding 
" in capite, or by barony, were to be discussed or decided ; 
*' and it unquestionably exercised a direct jurisdiction over all 
*' other the King's subjects." " Great transgressions against 
*' the public peace were heard before the Council." In a 
note to this passage Sir F. Palgrave refers to the arraign- 
ment of Segrave^, Constable of the Tower, for permittiDg the 
escape of Mortimer, and quotes a curious record, in which 
Sir John Dalton is summoned, " sub forisfactur^ vitse et 
*' membrorum et omnium aliorum quse nobis forisfacere 
" poteris" to bring before the Council one Margeria de la 
Beche, the wife of Gerard De L'lle, whom Dalton had 
forcibly abducted, and to do and receive (ad faciendum et 
recipiendum) such orders as the Council shall give. 

No opposition appears to have been made to this jurisdic- 
tion till the 25th Edw. 3 (1350), when the 2 Commons 
petitioned " qe nul franc homme ne soit mys a respondre de 
*' son franc tenement ne de riens que touche vie et 
" membre fyns ou redemptions par apposailles (informa- 
" tions) devant le conseil nfe seignur le Roi, ne devant ses 
" ministres quecumques sinoun par proces de ley de ceo en 
" are re use." The answer is, " II plest a nre seignur le 
" Roi q les leies de son Roiaume soient tenuz et gardez en 
*' lour force, et q nul homme soit tenu a respondre de son 
*' fraunk tenement sinoaan par processe de ley ; mes de chose 
" que touche vie ou membre contemptz ou excesse soit fait 
*' come ad este use cea en arere." 

This seems to be an express recognition of the fact that 
for at least 135 years after Magna Charta the criminal 
jurisdiction of the Council was undisputed. ^ Either in the 

M\ 34. « 2 Rot, Par. 228, and see Palgravo, 25. 

» 2 Rot, Par, 28U. 



170 STATUTES RELATING TO COUNCIL. 

Chap. VI. same or in the next Parliament a similar petition was 
' granted without any reservation, and this led to the statute 

printed as 25 Edw. 3, st. 5, c. 4. Similar statutes were 
passed in 1354 (28 Edw. 3, c. 3) and in 1368 (42 Edw. 3, 
c. 3).* On two occasions in the reign of Eichard II., three 
in the reign of Henry IV., two in the reign of Henry V., 
and one in the reign of Henry VI., petitions were made 
by Parliament with a view to limit the powers of the 
Council, but none of them passed into a statute, the answers 
given by the King being either unfavourable or qualified. 
Some of these petitions and the answers show that the 
ground on which the jurisdiction of the Council was defended 
was the difficulty in many instances of obtaining redress for 
injuries at the common law. 2 Thus in 1399 (1 Hen. 4) the 
Commons petition that personal actions between party and 
party may not be tried by the Council, to which the answer 
is, " Soit TEstatut ent fait tenuz et gardez, la ou Tune 
" partie est si graunt et riche, et Fautre partie si povre 
" qu'il ne purra autrement avoir recoverer." The word 
"except" (supplied by ^Sir F. Palgrave after "gardez") 
appears to be wanted. 

Upon the whole, the legal position of the Court of Star 
Chamber in 1640 seems to have been this. It had existed 
for 135 years after Magna Charta without being supposed to 
be illegal or to be in any way opposed to Magna Charta. In 
1350, 1354, and 1368, three successive acts of Parliament were 
passed, which, at first sight, seem to be intended to abolish it. 
From 1368 to 1640 (272 years) it continued to exist, not- 
withstanding parliamentary petitions which did not become 
statutes, the last of which was made in 1422, 218 years 
before 1640. On the other hand, the statute 3 Hen. 7, 
c. 2, if it did not exactly recognise the powers of the old 
court, at all events established a new one composed of 
several of its members and with a jurisdiction which, as far 
as it went, was identical with it. 

It would seem natural under such circumstances to suppose 
that some other interpretation ought to be put upon the 
statutes of Edward III. than that which was given to them 
1 See too 11 Rich. 2, c. 10. 23 ji^t. Par. 446. » p. 47. 






EFFECT OF STATUTES. I /I 

in 1G40. ^Hudson suggests "that these statutes did not Chap. VI. 

" extinguish the power of the court, but the abuse of appre- 

" bending men's persons to answer suggestions." The words 

of the statutes are " no man shall be put to answer before 

" the King or his Council without presentment before his 

" justices, matter of record, or writ original according to 

"the ancient laws." '^Hudson argues that the letter of 

privy seal, by which proceedings were, at least in many 

cases, commenced before the Star Chamber was an original 

writ, and that the abuse intended to be remedied was the 

arrest of a defendant by a pursuivant on a bare suggestion 

by a plaintiff. The phrase " no man shall 'be put to answer 

" before the Council, unless " certainly seems to imply that 

there was some legal way of proceeding before that body. 

Be this as it may, it is to be observed that even the Act of 1640 

did not declare the Court to be in itself illegal and its powers 

to be usurped. On the contrary, it recites that the matters 

examinable there are all capable of being duly remedied at 

common law, and that " the reasons and motives inducing 

*' the erection and continuance of that court do now cease." 

I shall have to return to the subject of the Star Chamber 
in connection with the history of the definitions of crimes 
and the history of legal procedure. I will conclude what I 
have to say at present by some observations on the general 
character and functions of the court. 

The praises of trial by jury as a bulwark of individual 
liberty are a familiar topic. It is less commonly known, 
but it is certainly no less true, that the institution 
opened a wide door to tyranny and oppression by men of 
local influence over their poorer neighbours. ^ In feudal 

M\ 12. 2 p 4 . gpe too Co]jg^ 4^;^ j„,^ g3^ 

^ Sir F. Palgravo (pp. 103, 289, &c.) gives some curious illustratious of this. 
'I'hc followiug are verses from a "ballad or libel " of the time of Edward 1. : — 

** Mes Ifi male doscynea dount Dieu n'ost ja pieti, 
Parmi lur fauce bouches me out eudit<5e, 
Dc males robberies e autns inav(!stee, 
Qe je u'ose entre mes amis estre receptee. 

*• Si ces maveis Jurmcrs ne se vueillent auKMider, 
Qc je pus a mou pais chevalcher c. aller, 
8i je les pus ateiudre la teste lur froi volrr, 
]>e touz fur ui.injiccs no dorroi un ddiier. 



y 



172 DEFECTS OF TRIAL BY JURY. 

Chap. VI. times the influence of a great landowner over the persons 
who were returned as jurymen to the assizes was practi- 
cally almost unlimited, and the system of indictment by 
a grand jury which merely reported on oath the rumours 
of the neighbourhood might, and no doubt often did, work 
cruel injustice. The oifence which was long known to the 
law as maintenance, or perverting justice by violence, by 
unlawful assemblies and conspiracies, was the commonest 
and most characteristic offence of the age. One of its com- 
monest forms was the corruption and intimidation of jurors.' 
Signal proof of this is supplied by the repeated legislation 
against this offence. The nature of the offence itself, and the 

** Vous qui estes endite je lou venez ci moi, 
Cit vert hois de Belregard, la n'y a nul ploy, 
Forsque beste savage e jolyf umbroy, 
Car trop est dotouse la commune loy. 

The following passage is from the Dance of Death, and gives a conversation 
between Death and a juror : — 

*' Master jurrour, which that at assizes, 
And at sheres quests didst embrace 
Deper didst lond like to thy devises, 
And who most gave most stood in thy grace, 
The poor man lost both lond and place, 
For gold thou couldest folk disherite, 
But now let see with thy pale face, 
Tofore the judge how canst thee quite ? " 

The jurrour maketh answer : — 

" Whilom I was cleped in my countrey, 
The bel weather, and that was not alight ; 
Nought loved but drad of high and low degree, 
For whom the best by craft 1 could endite, 
Hengen the true and the thef respite, 
All the countrey by my word was lad, 
But I dare sein shortly for to write, 
Of my death many a man is glad." 

The case of Cogan, quoted above, from the Parliamentary; Rolls is an 
illustration of the same thing. He offered to make good his case in any v.ay, 
" sinoun par verdit de jurrours." I cannot say, however, that the introduction 
of such phrases into popular ballads proves very much. The writers may have 
been great rogues. In my youth a ballad used to be sung which was said to 
be a genuine product of the hulks. It began — 

" My curse rest on you, Justice Bayley, 
And gentlemen of the jury also, 
For transporting me from the arms of my Polly, 
For tw^enty long years as you know." 

This is very like the " males doseynes dount Dieu n'est ja piete." The defects 
of trial by jury in early times rest, however, on better evidence than this. 



STATUTE 3 HEN. /. 173 

manner in which it was to be corrected by the Court of Star Chap.vi. 

Chamber, are fully described in the preamble and first section 

of 3 Hen. 7, c. 1, " The King our said sovereign lord remem- 

" bereth how by unlawful maintenance, giving of liveries, signs, 

" and tokens, and retainders by indentures, promises, oaths, 

'' writings, or otherwise embraceries of his subjects, untrue 

" demeanings of sheriffs in making of panels and other un- 

" true returns, by taking of money by juries, by great riots 

" and unlawful assemblies, the policy and good rule of this 

" realm is almost subdued, and for the not punishing of these 

" inconveniences, and by reason of the premises, little or 

" nothing may be found by inquiry " {i.e. by inquests or 

juries), " whereby the laws of the land in execution may take 

" little effect, to the increase of murders, robberies, perjuries, 

" and unsure ties of all men living, and losses of their lands 

" and goods to the great displeasure of Almighty God/' 

" Therefore it is ordained for Eeformation of the Premisses 

" by authority of the said Parliament, that the Chancellor 

" and Treasurer of England for the time being, and Keeper 

*' of the King's Privy Seal, or two of them, calling to them 

" a bishop and a temporal lord of the king's most honour- 

" able Council, and the two chief justices of the King's 

" Bench and Common Pleas for the time being, or two other 

" justices in their absence, upon bill or information put to 

" the said Chancellor for the king or any other against any 

" person for any misbehaviour before rehearsed, have authority 

** to call before them by writ or by Privy Seal the said misdoers, 

" and them and other by their discretion, by whom the truth 

" may be known, to examine, and such as they find therein 

" defective to punish them after their demerits, after the 

" form and effect of statutes thereof made, in like manner 

** and form as they should and ought to be punished as if 

" they were thereof convict after the due order of the 

"law." 

It is extremely difficult to say what was the precise object 
or effect of this statute. Coke seems to attribute to it 
no other effect than that of varying the procedure of the 
Star Chamber by enabling them to examine defendants, but 
this seems impossible, botli because (according to Hudson) 



174 LEGAL EFFECT OF THE STATUTE. 

Chap. VL such was the regular procedure of the Court, and because 
that procedure does not appear to have been confined after 
the statute to cases which fell within it. 

1 Hudson refers to the subject in such a way as to show 
that at one time it was a moot point whether the Council 
had any criminal jurisdiction other than that which this 
statute conferred upon them, but that the court held that it 
had. 2 Lord Bacon says of the statute that "the authority 
" of the Star Chamber which before subsisted by the ancient 
" common laws of the realm was confirmed in certain cases 
" by it." A very indefinite remark, accompanied by no ex- 
planation of the reasons for such an enactment. ^Mr. 
Hallam's opinion, founded upon an elaborate examination of 
the authorities, is as follows : 

1. The Court erected by the statute of Henry VII. was 
not the Court of Star Chamber. 

2. The Court by the statute subsisted in full force till 
beyond the middle of Henry VIII.'s reign, but not long 
afterwards went into disuse. 

3. The Court of Star Chamber was the old concilium 
ordinarium, against whose jurisdiction ^many statutes had 
been enacted from the time of Edward III. 

4. No part of the jurisdiction exercised by the Star 
Chamber could be maintained on the authority of the 
statute of Henry VII. 

On so very obscure a subject it is impossible now to go 
beyond conjecture. My conjecture, offered with very little 
confidence, is that the statute was meant to give an indis- 

1 P. 80. "It is a received opinion that the court should meddle with no 
** other causes than are expressed in the statute 3 Hen. 7, and I well re- 
" member that the Lord Chancellor Egerton would often tell that in his time, 
** when he was a student, Mr. Serjeant Lovelace put his hand to a demurrer in 
•*' this court for that the matter of the bill contained other matters than were 
" mentioned in the statute 3 Hen. 7, and Mr. Plowden, that great lawyer, 
" put his hand thereto first, whereupon Mr. Lovelace easily followed. But 
" the cause being moved in court, Mr. Lovelace being a young man, was 
*' called to answer the error of his ancient Mr. Plowden, who very discreetly 
" made his excuse at the bar that Mr. Plowden's hand was first unto it, and 
'* that he supposed he might in anything follow St. Augustine. And although 
•' it were then overruled, yet Mr. Serjeant Richardson, thirty years after, fell 
•' again upon the same rock, and was sharply rebuked for the same." See also 
the case of Chambers, 3 St. Tr. 380. 

^ History of Henry VII., Bacon's works, by Spedding, vi. 85. 

3 Cons. Hist, i. 55, note. * This is rather an overstatement. 



CRIMINAL JURISDICTION OF COUNCIL. I 75 

pu table statutory authority to that part of the Star Chamber Chap. VI. 
jurisdiction which appeared at the date of the statute most 
important, but that as it was found that the wider authority of 
the old court was acquiesced in, the statute fell into disuse. 
This conjecture is strengthened by the circumstance that the 
statute of Henry VII. is silent as to the jurisdiction of the 
court over several offences which, at the end of the fifteenth 
century, were probably of comparatively little importance, 
but which in the sixteenth and the beginning of the seven- 
teenth century gave the court its principal value in the eyes 
of the government. Of these, libels are the most important. 

Whatever may be the true explanation of these matters 
there can be no doubt at all as to the nature and functions 
of the court itself The jurisdiction of the Chancellor in 
civil matters, and the jurisdiction of the Council or Star 
Chamber in criminal matters, grew up side by side. Lord 
Bacon, after mentioning the common law courts,^ says, 
•' There was nevertheless always reserved a high and pre- 
" eminent power to the king's counsel in causes that might 
" in example or consequence concern the state of the Com- 
" mon wealth ; which if they were criminal, the counsel vised 
" to sit in the chamber called the Star Chamber; if civil, 
'' in the White Chamber or White-hall. And as the Chancery 
" had the praetorian power for equity, so the Star Chamber 
" had the censorian power for offences under the degree of 
" capital." 

2 In early times the Council was accustomed to grant to 
individuals the special commissions of Oyer and Terminer 
under the Privy Seal, which I have already referred to. 
When such commissions were forbidden by statute, the 
Council heard such cases themselves, they compelled appear- 
ance by ^ writs of premunire, and afterwards by the writ of 
* subpoena, which was invented in Edward Ill's time by Sir 

^ Works, vi. 85. « Palgmve, pp. 27-38. 

3 '• Kdwardu.s, &c., Vice comitibiis London, snlutcin. Quilmsdani ccM-tis do 
" causis vobi8 inundumiis finniter injuiigcntoH (luod pnurnuuiii! fnciatis 
" H. C. &c., quod . . . sit . . . coram consilio nostra, &c." Palgrave, 
note 11, p. 131. 

* ** Kdwardus, &c., K. S. salutern. Tibi prrecipimus qnodsis coram consilio 
" nostro, &c. Et hoc sub prend centum librarum nullatcnus omniittas." 
Palgrave, p. 41. 



I 



176 CRIMES PUNISHED BY COUNCIL. 

Chap. VI. John de Waltham (afterwards Bishop of Salisbury). Sir 
Francis Palgrave compares the authors of these writs to the 
forgotten inventors of the writs of ^ Latitat and Quo Minus, 
by which the Courts of King's Bench and Exchequer 
usurped civil jurisdiction. The Star Chafnber proceeded 
by bill and answer, and administered interrogatories to the 
accused party, whom they examined upon oath. 2 Hudson 
gives several instances in which, without exactly trying 
people for common offences, such as treason and murder, 
they inflicted heavy penalties for acts which might have 
been punished at common law under those denominations. 
The Earl of Rutland, for instance, was fined £30,000 for 
being concerned in the Earl of Essex's insurrection. ^ " And 
" there are above a hundred precedents where persons that 
*' gave countenance to felons were here questioned." In 
cases " pending upon felony " the party was not examined 
upon oath. 

These, however, were not the cases which commonly 
employed the Star Chamber. They are thus enumerated 
by 4 Hudson : Forgery, perjury, riot, maintenance, fraud, 
libelling, and conspiracy. Besides these ^ he ascribes to the 
court power to punish offences not defined or punishable at 
common law, and ^ he enumerates some instances in which 
jurisdiction w^as conferred on the court by statutes long 
since forgotten. 

To some of these matters I shall have to return in another 
part of this work. It is enough for the present to say that 
the tyrannical proceedings for political offences which ulti- 
mately caused the abolition of the court ought not to make 
us forget the great services which it rendered, not only 
to the cause of good order but to the law of the country. 

1 The writ of Latitat afSrmed that the defendant ought to be in the custody 
of the Marshal of the King's Bench, to answer for a trespass, suggested in what 
was called a Bill of Middlesex, instead of which he "latitat et dibcurrit " in 
some county other than Middlesex. The writ of Quo Minus stated that the 
defendant being a Crown debtor owed money to the plaintiff, whereby he was 
less able than he would have been to pay his debt to the Crown — a matter for 
the Exchequer. (3 Black. Co7n. 284-286.) 

2 P. 62. 3 p. 64. 
^ P. 71. Bacon (vi, 85) mentions four "forces, frauds, crimes various of 

" stellionate, and the inchoation or middle acts towards crimes capital or 
** heinous not actually committed or perpetrated." 
^ P. 107. « P. 113. 



CORRUPTION OF JURORS. 



177 



The common law was in all ways a most defective system, chap.vi. 

It was incomplete. Its punishments were capricious and 

cruel. Its most characteristic institution, trial by jury, was 
open to abuse in every case in which persons of local influence 
were interested. Juries themselves were often corrupt, and 
the process of attaint, the only one by which at common law 
a false verdict could be impeached or corrupt jurymen be 
punished, was as uncertain and as open to corrupt influences 
as other forms of trial by jury. ^'' When a corrupt jury," 
says Hudson, " had given an injurious verdict, if there had 
" been no remedy but to attaint them by another jury, the 
" wronged party would have had small remedy, as is mani- 
" fested by common experience, no jury having for many 
" years attainted a former. As also at this day in the Prin- 
*' cipality of Wales, if a man of good alliance have a cause 
" to be tried, though many sharp laws have been made for 
*' favourable panels, yet it is impossible to have a jury which 
" will find against him, be the cause never so plain : or if 
" arraigned for murder he shall hardly be convicted, although 
" the fear of punishment of this court carries some awful 
'' respect over them." 

According to our modern views, the proper cure for such 
defects would be intelligent and comprehensive legislation as 
to both crimes and criminal procedure, but for many reasons 
such an undertaking as a criminal code would have been 
practically impossible in the Tudor period. In these cir- 
cumstances, the Star Chamber, not merely exercised a control 
over influential noblemen and gentlemen which put a stop 
to much oppression and corrupt interference with the course 
of justice, but supplied some of the defects of a system 
which practically left unpunished forgery, perjury, attempts 
and conspiracies to commit crimes, and many forms of fraud 
and force. 

In the later stages of its history no doubt the Court of 
Star Chamber became a partisan court, and punished with 
cruel severity men who offended the King or liis ministers. 
Nothing can be said in excuse of such proceedings as those 
against Prynne or Lilburne ; but it is just to observe that the 

1 P. u. 

VOL. I. N 



178 REPUTATION OF STAR CHAMBER. 

Chap. VI. real objection made was to the punishment of the acts them- 
selves, rather than to the cruelty of branding or whipping. 
The punishments inflicted by the common law were in many 
cases more cruel than those of the Star Chamber, yet they 
seem to have excited no indignation. There is also some 
reason to believe that the cruel punishments inflicted under 
Charles I. were at least to some extent an innovation on the 
earlier practice of the court. 

It is curious to observe the degree to which the Court of 
Star Chamber impressed the imagination of several observers, 
one of whom at all events was unlikely to flatter it at the 
expense of the courts of common law, though it may 
certainly be observed of all that they seem to protest too 
much to be quite sincere. Bacon ^ describes it as " one of 
" the sagest and noblest institutions of this kingdom." 2 Coke 
says, "It is the most honourable court (our parliament 
" excepted) that is in the Christian world, both in respect of 
" the judges of the court, and of their honourable proceeding 
"according to their just jurisdiction, and the ancient and 
"just orders of the court." . . . "This court, the right 
"institutions and ancient orders thereof being observed, doth 
"keep all England in quiet." ^Hudson becomes quite 
enthusiastic on the subject. " Since the great Roman senate 
"so famous to all ages and nations as that they might be 
" csilledi jure mirum orhis, there hath no court come so near 
"them in state honour and judicature as this; the judges of 

1 Works, vi. 85. 2 ith Inst. p. Q5. 

^ P. 17. His enthusiasm is displayed in an amusing way in his discussion 
of the origin of the name of the court (p. 8). "I confess I am in that point 
" a Platonist in opinion that ^nomina naturdfiunt potius quam vagd imposi- 
*' tione,' for assuredly Adam before his fall was abundantly skilful in the nature 
" of all things ; so that when God brought him all things to name he gave 
** them names befitting their natures. And so I doubt not but Camera 
** Stellata . . is most aptly named ; not because the Star Chamber is so 
" adorned with stars gilded, as some would have it, for surely the chamber is 
" so adorned because it is the seal (? seat) of that court ; . . . and it was so fitly 
** called because the stars have no light but what is cast upon them by the sun, 
** by reflection being his representative body ; and as his royal majesty himself 
** was pleased to say," — in short he said that he was the sun and the judges the 
stars, but his majesty and Hudson between them spin out this conceit much 
as Lady Margaret Bellenden spun out the history of Charles II. 's breakfast 
at Tillietudlem. The favourite derivation of the name of the court is from 
the Starrs or Jewish charters anciently kept there. (See Madox, Uxch. i. 237.) 
The Jews were expelled in Edward I.'s reign, and the meaning of the word 
" starra" would naturally be forgotten, though the name might survive. 



THE STAR CHAMBER UNDER THE TUDORS. 179 

" this court being surely in honour, state, and majesty, learn- Chap. VI. 

" ing, understanding, justice, piety, and mercy equal, and in 

"many exceeding the Roman senate by so much, by how 

"much Christian knowledge exceedeth human learning." 

After giving a long and curious account of the authority 

of the Chancellor as chief judge of the court, ^ he says : 

" As concerning the great and eminent officers of the king- 

" dom, the Lord Treasurer, Privy Seal, and President of the 

" Council, their places or voices in this court when the 

"superior sitteth are of no more weight than any other of 

" the table ; so that the displeasure of a great officer cannot 

" much amaze any suitor, knowing it is but one opinion, and 

"the court is not alone replenished with noble dukes, 

"marquises, earls, and barons, which hereby ought to be 

"frequented with great presence of them, but also with 

"reverend archbishops and prelates, grave counsellors of 

" state, just and learned judges, with a composition for 

"justice, mercy, religion, policy, and government, that it 

" may be well and truly said that Mercy and Truth are met 

" together, Righteousness and Peace have kissed each other." 

He adds that in the reigns of Henry VII. and Henry VIII. 

the number of members present was at times thirty or 

even forty, as also in the time of Elizabeth, "but now 

"much lessened since the barons and earls not being privy 

"councillors have forborne their attendance.'' He also 

remarks that in the time of Henry VII. and Henry VIII. 

the punishments were far less severe than afterwards, the 

fines being imposed with due regard to the " salvo contenemcnto 

suo" of Magna Charta, and ^"the slavish punishment of 

"whipping'' not having been introduced "till a great 

"man — of the common law and otherwise a worthy justice 

" forgot his place of session, and brought " (? it) " in this 

"place too much in use." 

This curious passage seems to show that under the Tudors 
the Star Chamber was a numerous and comparatively mild 

1 P. 35. 

2 Til 6 words in the printed book are "the slavish speech of whispering," 
which is nonsense. Hallam makes tho emendation given in the text upon 
the authority of a MS. iu the Hritish Museum. (See Hallnm, (7o?u. Jlist, ii. 
p. 34, ed. 1855.) 

N '2 



I So PIUVY COUNCIL AS APPELLATE COUKT IN CRIMINAL CASES. 

Chap.vi. body, resembling in its constitution and proceedings a 
deliberative council rather than an ordinary court of justice, 
and that the proceedings which led to its abolition and 
made its name infamous were carried on at a time when 
it had come to consist of a small number of what we should 
call cabinet ministers, who abused its powers to put down 
opposition to their policy. It is unnecessary to refer in 
detail to the well-known instances of this abuse which led 
to the abolition of the court, though I have noticed some 
of them ^ elsewhere. 

Although the Court of Star Chamber, and with it the 
most important judicial powers of the Council, were abolished 
in 1640, one degree of criminal jurisdiction still remained in 
and is actually exercised at this day by the Privy Council. 
Whatever may be the law as to the power of the sovereign 
to establish new courts of justice in England by charter — 
a power which if it exists is never exercised or likely to be 
exercised except under the provisions of acts of parliament 
(as for instance, when a borough is created with a new 
Court of Quarter Sessions under the statutory provisions 
already referred to), it is the undoubted prerogative of the 
crown to establish courts of justice in any possessions 
which it may acquire beyond the realm, either by conquest 
or by settlement, and an appeal lies from such courts to 
the sovereign, unless it is taken away either by statute or 
charter. An appeal to the King also lay from all 
ecclesiastical courts, and from the Court of Admiralty. 
These last mentioned appeals were made by virtue of 25 
Hen. 8, c. 19, and 8 Eliz. c. 5, to "the King's Majesty in 
the King's Court of Chancery," and were heard by a body of 
delegates named by commission for that purpose. By 2 & 3 
Will. 4, c. 92, the appeal in such cases has to be made 
to the King in Council, and by 3 & 4 Will. 4, c. 41, all 
such appeals, and also all appeals " from various Courts of 
" Judicature in the East Indies, and in the plantations,' 
" colonies, and other dominions of his Majesty abroad " 
were to be heard before a body called the Judicial Committee 
of the Privy Council, which was constituted by the act 

1 See p. 338, post. 



CASE OF R. V. BERTRAND. ' lol 

in question in place of a committee of the whole of the Chap. VI. 
Privy Council, before which it had up to that time been 
customary (as the act recites) to hear such appeals. 

The right to hear appeals in criminal as well as in civil 
matters from all Her Majesty's dominions beyond the seas, 
in all cases in which that right has nob been expressly taken 
away, has been solemnly affirmed and exercised in a series 
of very modern cases. The principle is laid down m the 
case of ^ R. v. Bertrand in which Sir J. T. Coleridge in 
delivering judgment said : " Upon principle and reference to 
" the decisions of this committee it seems undeniable that 
" in all cases, criminal as well as civil, arising in places from 
" which an appeal w^ould lie, and where, either by the terms 
" of a charter or statute, the authority has not been parted 
" with, it is the inherent prerogative right, and on all proper 
" occasions the duty of the Queen in Council to exercise an 

" appellate jurisdiction But the exercise of this 

'' prerogative is to be regulated by a consideration of 
" circumstances and consequences ; and interference by Her 
" Majesty in Council in criminal cases is likely in so many 
" instances to lead to mischief and inconvenience that in them 
" the crown will be very slow to entertain an appeal by its 
" officers on behalf of itself or by individuals. The instances 
" of such appeals being entertained are therefore very rare." 
Many cases are referred to in this report, by which the 
conclusion quoted is fully established. It is remarkable 
that the ^ earliest of them was decided so lately as in the 
year 1835, and it does not appear from the report that the 
question, Whether the court had any such jurisdiction or not 
was raised on that occasion ; the jurisdiction has been 
exercised sparingly no doubt, but on several • very recent 
occasions.^ This jurisdiction is so narrowly limited, and 
so rarely exercised that it has been little noticed by writers 



1 L.R. 1 P.C. 529. In this case the question was discussed whether a new 
triiil in cases of felony could l»n grnnted at common law. 

- Pooneaklioty Modeliar v. Thti King, 3 Knapp, :M8. 

^ See c. (J. 11. V. Buruh, L.Il. o-Apj). (Juhch, 889, in which the nucstion was 
as to the extent of the le^slativc powers of the government of India; li. v. 
Mount, L.R. 6 P.C. 283, m which the (question was as to the senteniH! to be 
I)a8sed by an Australian court in its Admiralty jurisdiction. 



I 82 SUMMARY OF HISTORY. 

Chap. VI. on criminal procedure. In a historical point of view it 

is one of the most remarkable parts of the whole system, 

for it connects the common administration of justice in our 
own days with the Curia Regis through the Court of Star 
Chamber. 

In a few words the result of the history just related at 
length is as follows : 

From the most remote antiquity the administration of 
justice was the highest or one of the highest prerogatives 
of the sovereigns of this country, and his council or court 
was the organ by which that prerogative was exercised. 

The original council or court was divided in course of 
time into the Court of King's Bench, the Court of Common 
Pleas, and the Court of Exchequer, each of which had 
originally its -own peculiar province but each of which 
contrived to intrude to some extent upon the province of 
the other two, the three between them administering the 
known and well recognised law of the land. 

By the side of this comparatively well-defined jurisdiction, 
grew up by degrees the equitable jurisdiction (as it came 
to be called) of the Lord Chancellor, and the judicial 
authority, both civil and criminal, of the Council itself or 
Court of Star Chamber. The jurisdiction of the Chancellor 
being by experience found to be beneficial, and being wisely 
and justly used, was the foundation of the great Court of 
Chancery and of that part of our law or jurisprudence which 
goes by the name of equity. The judicial authority, civil 
and criminal, of the Council or Star Chamber being used 
oppressively for political purposes, was destroyed. After its 
destruction, however, the authority of the sovereign extended 
itself over a vast empire, including the whole of India, a 
great part of North America, Australia, New Zealand, the 
Cape, and many other places. ^The ancient prerogative of 

^ The extreme difficulty of saying precisely how far the prerogative of the 
sovereign as fountain of justice extends, and at what point the power of the King 
to erect courts of justice ends, is well illustrated by the discussions which arose 
some years since as to the validity of those clauses in the patents of certain 
colonial bishops, which purported to give some of them jurisdiction over 
others. The question was fully argued before the Judicial Committee of the 
Privy Council in the matter of the Bishop of Natal. One point raised during 
that argument was as follow s : It was urged that the view contended for by 



POWER OF PRIVY COUNCIL TO COMMIT. 1 83 

the crown as the fountain of justice was held to vest in chap. VI. 

it the ultimate appeal in all cases, civil and criminal, from 

all courts in these vast territories, and a committee of the 
Privy Council, which is the direct descendant of the old 
Curia Regis, is to this day the organ by w^hich that prerogative 
is administered. 

In concluding this account of the criminal jurisdiction of 
the Privy Council I must mention their powers as commit- 
ting magistrates. From the earliest times they have exercised 
the power of inquiring into criminal charges and committing 
suspected persons for trial. ''The power of the Privy 
" Council," says Blackstone, ^*'is to inquire into all offences 
" against the government and to commit the offenders 
'' to safe custody, in order to take their trial in some of 
" the courts of law^" For a great length of time this was 
the common course in regard to all political offences, but 
now it is usual to send even political offenders before a 
magistrate to be dealt with in the ordinary way. When 
Oxford shot at the Queen he was examined in the first 
instance before the Privy Council, but was afterwards sent 
before a police magistrate. Maclean, who committed the 
same offence in 1882, was not brought before the Privy 
Council at all, but was committed in the common way by 
the borough magistrates at Windsor. 

the counsel for the Bishop of Natal involved the absurd conclusion that he 
was subject to no jurisdiction at all. To this his counsel answered that the 
crown could issue a commission to try him. It was replied that this would be 
contrary to the statute (16 Chas. 1, c. 11, s. 5) by which the High Commission 
Court was abolished and the foundation of similar courts forbidden for the future. 
It was rejoined that such a construction of the statute would involve the 
absurd result that if the Archbishop of Canterbury were to commit an eccle- 
siastical offence he could not be tried at all, for he could not try himself in 
his own court, and there was no other to try him, unless the Queen could issue 
a commission for that purpose. The counsel apuiist the Bishop of Natal 
attempted to rebut this argument in difl'erent ways. Sir Robert Phillimore 
suggested that in such a case the archbishop might be tried by a general 
council of the ciiurch (which was directly opposed to the royal eupremacy) 
and Lord Cairns (then Sir Hugh Cairns) suggested that he might be impeached 
in parliament, which again seems a singular mode of i)roceeding in an eccle- 
siastical case, though no doubt there were precedents for it in the reigu of 
Charles I. 

2 1 Black. Com. 230. 



184 PROCEDURE TO COMMITTAL FOR TRIAL. 



CHAPTER VII 

HISTORY OF THE LAW OF CRIMINAL PROCEDURE. — PRO- 
CEDURE DOWN TO COMMITTAL FOR TRIAL OR BAIL. 

Ch. VII. Having in the last chapter traced the history of the 
courts of a criminal jurisdiction, I now proceed to the history 
of the procedure followed for the punishment of criminals. 
I shall give the history of each step in the procedure sepa- 
rately, and I intend in the present chapter to treat of the 
procedure from the arrest of the offender to his discharge or 
committal for trial. This consists of two stages, namely, the 
apprehension of the offender, closely connected with which is 
the law as to the suppression of offences, and the preliminary 
investigation before a magistrate, which results in the discharge, 
or committal for trial, or bailing of the supposed offender. 

In each case, the law itself was as a matter of fact sub- 
sequent to the establishment of the officers or courts by 
which it was carried into execution. Also, in each case, after 
the practice of the officers or courts had gradually formed 
the law, alterations were made by statute both in the law 
itself and as to the officers and courts by whom it was 
to be administered. 

^THE APPREHENSION OF OFFENDERS AND SUPPRESSION OF 
OFFENCES. 

I have described above the system for the apprehension of 
offenders and the prevention of crime which existed down 
to the time of William the Conqueror and his sons. 

The foundation of the whole system of criminal pro- 

^ As to existing laws of arrest, see Dig. Crim. Proc. ch. xii. arts. 96-98. 



EARLY POLICE. I 85 

cedure was the prerogative of keeping the peace, which is Ch. vii. 
as old as the monarchy itself, and which was, as it still is, 
embodied in the expression, " The King's Peace," the legal 
name of the normal state of society. This prerogative was 
exercised at all times through officers collectively described 
as the ^ Conservators of the Peace. The King and certain 
great officers (the chancellor, the constable, the marshal, the 
steward, and the judges of the King's Bench) were con- 
servators of the peace throughout England, but the ordinary 
conservators of the peace were the sheriff, the coroner, 
the justices of the peace, the constable, each in his own 
district. During the reigns of Henry II., Richard I., John, 
Henry III., and Edward I., the system administered by these 
authorities (with the exception of the justices of the peace, 
who were not established till the reign of Edward III.) was 
elaborated and rendered more stringent than it had been 
before the Conquest by a long series of enactments. 

The first of these was the ^ Assize of Clarendon issued by 
Henry II. in 1166, just 100 years after the Conquest. It 
was re-issued as the ^Assize of Northampton in 1176, in the 
form of instructions to the six '' committees of judges who 
" were to visit the circuits then marked out." The provisions 
of the Assize of Clarendon bear more directly on the present 
subject than those of the Assize of Northampton. 

^The Assize provided that the sheriffs and justices should 
make inquiry upon the oath of twelve men from every hundred 
and four men from every township whether any man in any 
township was ^a robber, murderer, or thief, or a receiver of 
robbers, murderers, or thieves ; that every person so accused 
should be taken and brought before the sheriffs and by them 
before the justices, and that no lord of a franchise ^ "nee in 
" honore etiam de Wallingeford " should interfere to prevent 
;he sheriff from entering his franchise either to arrest accused 

^ On the conservators of the peace, sec Fitzllerbert, JuHfdces of the 
^ea/ae, 6 B. ; Coke, 2nd Inst. 638 ; a lar<^e collection of authorities in Burn's 
htstice, title "Justices of the ]'ea(;e ;" Hawkins, Pleas of t)tc Crown, bk. ii. 
sh. viii. vol. ii. p. 38, edition of 1814 ; but the best and most instructive 
MJcount of the matter is to be found in tlie celebrntcd judgment of Lord 
Camden in Entick v. Camngton (the case of the seizure of papers), 
ly St. Trials, lO.'K). See also anie, \i. 110, kc. 

« Stubl)s, C'fMrlers, 140-146. » lb. 160-163. * Arts. 2, 4. 

' "Robator vel murdrator vel latro." • Arts. 9-11. 



I 86 ASSIZE OF ARMS. 

Ch. VII. persons or to examine the frank pledges and see that every 
one was a member of a frank pledge. The Assize of North- 
hampton ^ enacts amongst other things that every robber on 
being taken is to be delivered to the custody of the sheriff, 
and in his absence to be taken to the nearest ** castellanus " 
to be kept by him till he is delivered to the sheriff. The 
Assize also provides (art. 2) that no one is to be allowed to 
entertain any guest in his house, either in a town or in the 
country (neque in burgo neque in villa), for more than a night 
unless the guest has some ^ reasonable excuse which the host 
is to show to his neighbours, and when the guest leaves, he 
must do so in the presence of neighbours and by day. 

By the ^Assize of Arms, issued in 1181, every one was 
bound to have certain arms according to his property. 
The justices, on their eyre, were to make the representatives 
of all hundreds and towns swear to give in a return 
showing the property of all persons in the neighbourhood, 
and which of them had the arms which, according to 
their property, they were bound to have. Those who had 
not such arms were to be brought before the justices to 
swear to have them by a given day, and "justitise facient 
" dici per omnes comitatus per quos itura^. sunt, quod qui 
" haec arma non habuerint secundum quod praedictum est, 
" dominus rex capiet se ad eorum membra et nullo modo 
" capiet ab eis terram vel catallum." 

The main object of these provisions no doubt was to 
provide a military force ; but they were also intended to 
give the local authorities the means of suppressing violent 
crimes, for the persons so armed formed the power of the 
county {posse comitatus), which it was the duty of the sheriff 
in case of need to raise by hue and cry. 

This is set in a striking light by a * passage in BractoD, 
which describes the steps to be taken on opening a commis- 
sion of eyre by the justices in eyre. The representatives of 
the county having been convened, the justices were to make 

1 Art.>12 ; Stubbs, Charters, 152. 

'^ "Essonium," this is the technical word for the excuses given for not 
taking a step in procedure, e.g. for not appearing on being summoned in an 
action. 3 Stubbs, Charters, 154. 

* Bracton, iii. 1, vol. ii. p. 235-237 (Twiss's edition). 



HUE AND CRY. 



187 



S 



a speech to them. " In the first place, concerning the peace Ch. VII. 

" of our Lord the King, and the violation of his justice by 

" murderers, robbers, and burglars, who exercise their malice 

" by day and by night, not only against men travelling from 

" place to place, but against men sleeping in their beds, and 

" that our Lord the King orders all his faithful subjects, by 

" the faith which they owe to him, and as they wish to 

" preserve their own, to give effectual and diligent counsel 

" and aid to the preservation of peace and justice and to the 

" taking away and repression of the malice of the aforesaid." 

The principal persons are then to be taken apart, and are to 

be privately informed " that all persons of fifteen years of 

" age and upwards, as well knights as others, must swear 

" that they will not receive outlaws, murderers, robbers, or 

" burglars, nor consent to them, nor to those who receive 

" them, and that if they know of such persons, they will 

" cause them to be attached, and give information to the 

" sheriffs and bailiffs, and, if hue and cry is raised upon 

" them, will, as soon as they hear the cry, follow with their 

" households and the men of their land." If the criminal 

is not taken on the spot, he is to be tracked. " Let them 

" follow the .track through their own land, and at the end 

" of their own land show it to the lord of the next land, and 

" thus let pursuit be made from land to land " (township 

to township) " with all diligence till the criminals are taken, 

" and let there be no delay in following the track unless a 

" difficulty arises by the coming on of night, or by other 

" reasonable cause, and they must, according to their power, 

" arrest those whom they suspect without waiting for the 

" orders of the justice or the sheriff, and must inform the 

" justices and sheriffs of what they have done. They must 

" also swear that if any one comes into any village or town 

" or elsewhere to buy bread or beer or other victuals, and is 

" suspected of doing so for the use of criminals, they will 

" arrest him and deliver him, when he is arrested, to the 

" sheriff or his bailiffs. They must also swear that they 

" will take in no one as a guest in their houses by night, 

" unless he is well known, and that if they entertain any 

" unknown person they will not permit him to leave on the 



I 88 STATUTE OF WINCHESTER. 

Ch. VII. " morrow before it is clear daylight, and that in the presence 
" of three or four of their nearest neighbours." 

Bracton wrote in the reign of Henry III. In the time 
of Henry's son and successor the system embodied in these 
enactments reached its highest point of strictness. This 
' appears from the provisions of the Statute of Winchester 
(13 Edw. 1, St. 2, c. 1, 2, 4, 5, 6), passed in 1285. ^ This 
statute enacts (ch. 2) that when a robbery is committed 
the hundred shall be answerable unless the robbers are 
apprehended within forty days, that in all walled towns the 
gates shall be shut from sunset to sunrise, that a watch 
should be set at each gate, and " that no man do lodge in 
" suburbs from nine of the clock until day without his host 
" will answer for him." All strangers passing the watch at 
night are to be arrested till morning. All roads are to be 
cleared, "so that there be neither dyke, underwood, nor 
" bush whereby a man may lurk to do hurt " within 200 
feet on each side of the road. Lastly, every man is to " have in 
" his house harness to keep the peace after the ancient assize" 
(the Assize of Arms). The arms were to be viewed twice 
a year by constables chosen for that purpose, who were to 
present defaulters to the justices. The sheriffs and bailiffs 
were to follow the cry with proper horses and armour 
whenever it might be raised. 

By this time frank pledge must have become obsolete. 
The Statute of Winchester makes no mention of it, nor 
does the Statutum Wallise, nor indeed does any other 
statute with which I am acquainted treat it as an actually 
existing institution for keeping the peace. The name in- 
deed continued and still exists. The view of the frank 
pledge, that is to say, the verification of the fact that the 
frank pledges were in full efficiency, and that every one 
belonged to such a body, was anciently one of the most im- 
portant duties of the county and hundred courts and the 
courts leet. Hence, as the county and hundred courts 

^ This enactment was followed by others, e.g. 9 Geo. 1, c. 22, s. 7 (the 
Black Act), which in particular cases rendered the hundred liable for damages 
inflicted- by criminals. They were all repealed by 7 & 8 Geo. 4, c. 27. 
There are, however, still one or two cases in which such a liability is imposed 
"by 7 & 8 Geo. 4, c. 31. These relate to damages caused by rioters. 



LAW OF SUMMARY ARREST. I 89 

were disused, the expression " the view of frank pledge " Ch. vii. 
came to be synonymous with ''court leet." The chief 
business transacted in these views of frank pledge or courts 
leet was the presentment of petty nuisances, and especially 
the ''assiza panis et cerevisise," violations by bakers and 
brewers of rules as to the quality of their bread and beer. 
It is in this sense that frank pledge is referred to in the 
^Parliament Kolls, and that the expression is used by 
Coke. The ''Statute for View of Frank Pledge" (18 
Edw. 2, A.D. 1325) specifies thirty-four such articles as to 
which stewards were to inquire in their leets. 

Shortly the system just described was as follows. Upon 
the commission of a felony any one might arrest the offender, 
and it was the duty of any constable to do so. If the 
offender was not arrested on the spot, hue and cry might and 
ought to be raised. The sheriff and constables from the 
earliest times, the justices of the peace from the beginning 
of the reign of Edward III., were the officers by whom the 
cry was to be raised. In order to render the system effec- 
tive, every one was bound to keep arms to follow the 
cry when required, all towns were to be watched and the 
gates shut at night, and all travelling was put under severe 
restrictions. 

The Assize of Arms and the 2 Statute of Winchester fell into 
disuse, but the right of summary arrest in cases of felony 
continues to this day to be the law of the land, and though 
the sheriff's personal intervention in the matter has practi- 
cally fallen into disuse, the justices, and the constable are still 
the authorities by whom the system is worked. 

One great alteration was made in the system just de- 
scribed between the fourteenth and the seventeenth centuries. 
During that period, summonses and warrants superseded 

^ ^ace.g. a petition in 1877 (1 Richard II.) : " Item suppliont les ditz com- 
•* mun.s ([ les Sis qui ount letters et viowe do frank pleg^ q'ils faient due 
•' puni.ssoment as Taverncrs de vins si avant conio des autros vitailles." The 
answer is, *' II n'est niye article do veiie de frank pleggo niais en soit usyo 
*' come ad estee fait rosonablement avant cea heures. 3 Hot. Far. 19 ; and 
see ith Iiitit. 261. 

2 The Statute of Winchester is not mentioned in Coke's liid liuttittUe, and 
tliough it was not repealed till 1828, it had for centuries before^ that time been 
-roatly neglected. See Harrington's Observations on the Statutes, p. H6. 



190 JUSTICES OF THE PEACE. 

Ch.vti. the old hue and cry which practically fell into disuse. The 
history of this substitution is curious. 

Justices of the peace were first instituted in 1326. Their 
duties were described in the most general terms. They were 
by 1 Edw. 3, c. 16, " assigned to keep the peace." By 
34 Edw. 3, c. 1 (1360), they were empowered " to take and 
" arrest all those they may find by indictment or suspicion 
" and put them in prison." But neither in these nor any 
other early statute with which I am acquainted is there any 
provision which enables them directly to take an information 
as to the commission of a crime and issue a summons or 
warrant for the apprehension of the suspected person. 

The statutes above quoted give them no other authority 
for the apprehension of offenders than was by the common 
law inherent in every constable and indeed in every private 
person. By degrees, however, the practice of issuing 
warrants came into use. The general authority of the 
justices in all matters relating to crime and indeed to the 
whole internal government of the country was firmly esta- 
blished by a great variety of statutes, and it would be natural 
that their directions should be taken when a crime was com- 
mitted. It would also be more natural for the justice to 
authorise the constable to undertake the actual arrest of the 
offenders than to do it himself, and it might often be con- 
venient, if a suspected person was to be searched for in more 
directions than one, to give written authority to various persons 
for the purpose. 

This would be specially convenient in the case of a 
hue and cry. If offenders were to be followed from township 
to township, the different constables of each being required to 
join, a written authority from a known public officer like a 
justice of the peace would be a great convenience. The 
phrase ^ '' grant a hue and cry " was apparently in common use 
in the seventeenth century for granting a warrant, but the 
granting of warrants was afterwards recognised by ^ various 

1 " At eleven o'clock the same night, as I was going into bed, Mr. Thynne's 
" gentleman came to me to grant a hue and cry " (on his master's murder by 
the friends of Count Coningsmark).— AS'^r J. Rereshy's Memoirs, p. 235 (edition 
of 1875). > 1^ V 

^ See G.g. 9 Geo. 1, c. 7, s. 3 ; 13 Geo. 3, c. 31 ; 44 Geo. 3, c. 92. 



POWER TO ISSUE WARRANTS. ^v IQI 

statutes, and was finally set upon an ^ indisputable statutory Ch. Vll. 
foundation in 1848 by 11 & 12 Vic. c. 42, ss. 1, 2, 8, &c. 
The effect of these provisions is that, where a complaint is 
made to any justice that any person has committed any in- 
dictable offence, the justice may issue a summons to such 
person, or, if he thinks it necessary, and if the charge is made 
on oath, and in writing, a warrant for his apprehension. 

The power of the justices to issue such process was however 
disputed for centuries. In ^ Hawkins's Fleas of the Grown, 
many authorities upon the subject are referred to, and a very 
qualified and hesitating conclusion is reached, that "perhaps 
"it is the better opinion at this day that any constable or 
" private person to whom a warrant shall be directed from a 
" justice of the peace to arrest a particular person for felon]^ 
" or any other misdemeanour within his jurisdiction may law- 
" fully execute it, whether the person mentioned in it be in 
*' truth guilty or innocent, and whether he were indicted of 
" the same offence or not, and whether any felony 
" were in truth committed or not." This hesitation is ex- 
plained by the difference of opinion between Coke and Hale 
upon the subject. ^Coke maintained that, before the statutes 
of Philip and Mary authorising justices to examine witnesses 
when a person was arrested for felony, " a justice of the peace 
" could not make a warrant to take a man for felony unless he 
" be indicted thereof." He also maintained that the only 
warrant which the statutes of Philip and Mary could betaken 
to authorise by implication (they say nothing at all about 
warrants) were warrants to constables to see the king's peace 
kept upon the occasion of the apprehension of the person 
suspected by the person having suspicion. Coke goes so far 
as to maintain that upon such a warrant the constable would 
not be justified in breaking open a door, "for it is in law the 
" arrest of the party that hath the knowledge or suspicion." 

* Hale referring to this passage, says that Coke " hath 
" delivered certain tenets which, if they should hold to be 
" law, would much abridge the power of justices of the peace, 

^ Dig. Crim. Proc. arts. 99-108. 

- Bk. ii. ch. xiii. vol. ii. pp. 129, 130, edition of 1824. 

* Uh hist. 176, 177. * 2 P. C. 107-110. 



192 HALE AND COKE ON WARRANTS. 

Ch. VII. '' and give a loose to felons to escape unpunished in most 
** cases." He then proceeds to refer to the statutes of 
Edward III., and argues in substance that as at common 
law a private person might and a constable ought to arrest 
supposed felons upon suspicion without warrant, the justice 
might do so a fortiori^ in virtue of the general terms of the 
statutes, and that he might also " issue a warrant, to appre- 
'* hend a person suspected of felony though the original 
" suspicion be not in himself, but in the party that prays his 
" warrant, and the reason is because he is a competent judge 
" of the probabilities offered to him of such suspicion." This 
opinion prevailed in practice long before any necessity arose for 
inquiring whether it was well founded in theory. That it 
was highly expedient that justices of the peace should act 
judicially in issuing warrants admits of no question at all. 
That it was intended that they should do so when the statutes 
under which they were first appointed were enacted seems to 
me unlikely. If such had been the intention of the legis- 
lature, it is probable that they would have been authorised 
and indeed required to proceed in the same manner as 
coroners, namely, by summoning inquests ; but, however this 
may be, the whole subject is now set on a perfectly plain 
foundation by the statutes already referred to. 

Whilst the duties of private persons, constables, and justices 
were being gradually ascertained, the law as to the circum- 
stances which would justify an arrest for felony was being 
elaborated. In an earlier chapter I have given some illus- 
trations of the manner in which all sorts of criminals, and 
especially all thieves, were regarded in very early times as 
enemies to be put to death almost like wild animals. It would 
not be worth while to trace minutely the steps by which 
this general and crude view of the subject was gradually 
reduced to the shape in which it now stands. Questions con- 
tinually aro'se as to whether a person who had killed another 
in resisting apprehension was guilty of any offence at all, and, 
if guilty, whether the offence of which he was guilty amounted 
to murder or manslaughter. These cases were decided from 
time to time according to a variety of distinctions sug- 
gested by the circumstances of each particular case, a long 



COMMON LAW OF ARREST. 193 

detail of which may be found in ^ Hale's Pleas of the Crown c;h. vii. 
which is still the leading authority as to the general principles 
of the subject, though subsequent decisions and enactments 
have to some extent modified Hale's conclusions. ^ The result 
of his inquiry may be thus stated : — 

1. Any person may arrest any person who is actually 
committing or has actually committed any felony. 

2. Any person may arrest any person whom he suspects on 
reasonable grounds to have committed any felony, if a felony 
has actually been committed. 

3. Any constable may arrest any person whom he suspects 
on reasonable grounds of having committed any felony, 
whether in fact any such felony has been committed or not. 

The common law did not authorise the arrest of persons 
guilty or suspected of misdemeanours, except in cases of an 
actual breach of the peace either by an affray or by violence 
to an individual. In such cases the arrest had to be made not 
so much for the purpose of bringing the offender to justice as 
in order to preserve the peace, and the right to arrest was 
accordingly limited to cases in which the person to be arrested 
was taken in the fact or immediately after its commission. 

As to the degree of force which may be used in order to 
arrest a criminal, many questions might be suggested which 
could be answered only by way of conjecture. Two leading 
principles, however, may be laid down with some confidence, 
which are also to be collected from Hale. The first is ^ that 
if a felon flies or resists those who try to apprehend him, and 
cannot otherwise be taken, he may lawfully be killed. * The 
second is that a person who makes an arrest because it is his 
legal duty to do so is more readily justified in using violence 
for the purpose than a person who is under no such duty. 

^ 2 Hale, 72-106. 

2 As to present law of summary arrest, see Dig, Crim. Proc, ch. xii. arts. 
96-98. 

3 1 Hale, 481, 489 ; and see Foster, 271. This rule seems to overlook the 
distinction between taking a man }»risoner and taking; ]ioss('Hsion of his dead 
body, for it is difficult to see in what sense a pick]iockot can l)o said to bo 
taken if he is shot dead on the spot. The rule would be more accurately ex- 
pressed by saying that a man is justified in using any violence to arrest a felon 
which may bo necessary for that purpose, even if it puts, and is known and 
meant to put, his life in the greatest possil)lo danger, and is inflicted by a 
deadly weapon, and does in fact kill him. * 1 Halo, 490 ; Foster, 418. 

VOL. I. 



194 LOCAL POLICE — PARISH CONSTABLES. 

Ch. VII. If A kills B, whom he suspects on probable grounds of 
having committed a felony, though in fact he has not, and 
whom he cannot otherwise arrest, it appears probable that A 
is guilty of manslaughter if he is a private person, but if A 
is a constable following a hue and cry, his act is justifiable 
because he acts in the discharge of a legal duty. 

The common law as to the arrest of prisoners remained 
substantially unaltered for a great length of time. It is 
indeed in force at this day with some few modifications, to 
be stated immediately; but since it reached the state of 
development just described, changes of the greatest im- 
portance have been made in the position of the officers by 
whom it is put in force. These changes I now proceed to notice. 

From the earliest times to our own days, there were two 
bodies of police in England, namely, the parish and high con- 
stables, and the watchmen in cities and boroughs. ^ The parish 
constables, under various names (borsholders, headboroughs, 
tithingmen, chief pledges, &c.), were probably the successors 
of the old reeves, who with their four men represented the 
township on all occasions at the beginning of our legal history. 
In each hundred and in many franchises there were also high 
constables, or similar officers with other names, who were to 
the hundred or franchise what the parish constables were to 
the township. These officers continued to be appointed till 
within the last few years. The duties of the high constables 
came to be almost nominal, consisting principally in issuing 
various notices under different statutes, and they were relieved 
of them almost entirely in 1844 by the 7 & 8 Vic. c. 38, 
ss. 7 & 8. The office itself was practically abolished in 
1869 by 82 & 88 Vic. c. 47. The parish constables con- 
tinued to be appointed till 1872, when their appointment was 
rendered unnecessary (except in some special cases) by 85 
& 86 Vic. c. 72; but from the time when the Statute of 
Winchester and the Assize of Arms became obsolete till 
the year 1829, they were the only body of men, except 
the watchmen in cities and boroughs, charged with the duty 
of apprehending criminals and preventing crimes. 

1 Dalton^ s Jtistice, p. 3 ; Burn's Justice, title "Constable." A tithingman 
seems to have been subordinate to the constable. 



( 



WATCHMEN IN TOWNS. 195 

The watchmen in towns were first established by the Ch. VII. 
Statute of Winchester, and the powers of the town magis- 
trates depended originally upon their charters, which were 
often silent on the subject of watchmen. At a time which 
I am not able to fix with precision, but which from ^ expres- 
sions in the Report of the Municipal Corporation Commission 
I think must have been in the latter part of the last century, 
it became customary to pass Local Improvement Acts, by which 
the management of matters connected with the police of towns 
was usually vested in a body of trustees or commissioners 
distinct from the corporation itself. There were great differ- 
ences in the manner in which these powers were allotted. 
The following passage occurs in the report already quoted : — 
^ " In a very great number of towns there are no watchmen 
" or police officers of any kind except the constables, who are 
" unsalaried officers. They are sometimes appointed at a 
" court leet, more frequently by the corporate authorities. 
" The police, and the powers conferred by local acts for 
" paving, lighting, and watching the town, are seldom ex- 
" clusively in the jurisdiction of the corporation ; sometimes 
" they are shared by the corporate authorities and commis- 
" sioners ; sometimes they are vested in commissioners alone." 
A striking illustration of the confusion thus produced is 
given in ^Colquhoun's Treatise on the Police of the Metropolis. 
He observes : — " At present the watchmen destined to guard 
" the lives and property of the inhabitants residing in near 
" <S,000 streets, lanes, courts, and alleys, and about 152,000 
" liouses, composing the whole of the metropolis and its 
" environs, are under the directions of not less than above 
" seventy different trusts, regulated by perhaps double the 
" number of local acts of parliament (varying in many shades 
" from one another), under which these directors, guardians, 
" governors, trustees, or vestries, according to the title they 
" assume, are authorised to act, each attending only to 

' Ist Henort, p. 17. ' V. 29. 

•■' Pul)lisnfld in 1796. In the lieport of a Sdcct CoinmittM on tJw Police, of 
thr MrfropoUa, publiHlifid in 1838, the Committoo says of this work, "The 
*' merit of hciiij? the first to point out the necosKity and prncticalnlity of .a 
'* system of nrevontive police upon an nnifonn and consistent plan is due to 
" Mr. Colqunoun, the author of the treatise On tJie Police of the AfdrnpoHs." 

o 2 



19^ POLICE AT END OE i8tH CENTURY. 

Ch. VII. " their own particular ward, parish, hamlet, liberty, or 
" precinct." 

Nothing could exceed the inefficiency of the constables 
and watchmen. Of the constables, Dalton (in the reign of 
James I.) observes that they " are often absent from their 
" houses, being for the most part husbandmen, and so most 
" of the day in the fields." The charge of Dogberry shows 
probably with no great caricature what sort of watchmen 
Shakespeare w^as familiar with. In the work already quoted, 
^ Colquhoun observes of the watchmen of his time that the 
pay was so bad that " the managers have no alternative but 
" to accept of such aged and often superannuated men living 
" in their respective districts as may offer their services." . . . 
" What can be expected from such watchmen ? Aged in 
" general ; often feeble ; and almost on every occasion half 
" starved from the limited allowance they receive, and 
" without any claim upon the public or the least hope of 
" reward held out even if they performed any meritorious 
" service " . . . " and, above all, making so many parts of 
" an immense system, without any general superintendence, 
" disjointed from the nature of its organisation, it is only a 
'* matter of wonder that the protection afforded should be 
" what it really is." 

The defects of this state of things were slightly, but very 
slightly, mitigated by the institution of a number of small 
bodies of constables under the direction of particular magis- 
trates. In the year 1796 there were eight such constables at 
Bow Street (known as Bow-Street runners), and six others 
at each of seven other police offices in London, making in all 
fifty constables who gave their whole time to their business. 
There were also sixty-seven mounted police, forming what was 
called the horse patrol, who patrolled the roads near London 
for the suppression of highwaymen. Probably there may 
have been arrangements more or less resembling these in other 
large towns. This system continued practically unaltered till 
the year 1829, although ^ various parliamentary inquiries into 

1 Colquhoun, p. 232. 

2 Parliamentary committees reported on the subject in 1816, 1817, 1818, 
1822, and 1828. The evidence given before them fills several bluebooks, and is 
curious and instructive. 



ESTABLISHMENT OF METROPOLITAN POLICE. 19/ 

the subject took place. In 1829 was passed the first of a Ch. VIL 
series of acts which put the administration of the law as to 
the apprehension of offenders upon quite a new footing. 
This was the 10 Geo. 4, c. 44. Under this act, as amended 
by the ^ later acts referred to in the notes, the following system 
was established, and still exists, in the neighbourhood of 
London. The city of Westminster and certain parts of the 
counties of Middlesex, Surrey, Hertford, Essex, and Kent are 
constituted into a district called "The Metropolitan Police 
District." ^ Her Majesty is empowered to appoint a " Com- 
missioner of the Police of the Metropolis," with two Assistant 
Commissioners, who in certain cases may act as his deputies 
and in other cases act under his orders. 

^ The Commissioner and assistants are during their tenure 
of office justices of the peace for Middlesex, Surrey, Hert- 
ford, Essex, Kent, Berkshire, and Buckinghamshire, but 
they must not sit at quarter sessions, nor act except 
for the preservation of the peace, the prevention of crimes, 
the detention and committal of offenders, and the execution 
of the acts by which they are appointed. 

^ A sufficient number of fit and able men are from time to 
time by the direction of the Home Secretary to be sworn in 
before the Commissioner to act as a police force for the whple 
district, and throughout the counties of Middlesex, Surrey, 
Hertford, Essex, Kent, Berkshire, and Buckinghamshire, 
and ^on the Thames, and the members of the force are 
throughout those counties to have all the powers which con- 
stables duly appointed have within their constablewick at 
common law. 

^ The Commissioner may, subject to. the approbation of the 

' 10 Geo. 4, c. 44, s. 4. The .schedule to the act constitutes certain 
piirts of Middlesex, Surrey, and Kent into the Metropolitan Police District. 
S. 34 gives the Secretary of State power to extend it to places within twelve 
miles of Charing Cro.s.s, and this is extended to lifteen miles by 2 & 3 Vic. 
c. 47, 8. 2. . 

^ There were at first two justices, 10 Geo. 4, c. 44, s. 1. They were to 
be called Commissioners of Police by 2 & 3 Vic. c. 47, s. 4. One Commis- 
sioner and two Assistant Commissioners were substituted by 19 & 20 Vic. 
c. 2. 

3 10 Geo. 4, c. 44, 8. 1 ; 2 & 3 Vic. c. 47, s. 4 ; 19 A 20 Vic. c. 2, s. 1. 

* 10 (k'o. 4, c. 44, 8. 4. » 2 & 3 Vic. c. 47, s. 6. 

• 10 Geo. 4, c. 44, s. 5. 



igS POLICE UNDER MUNICIPAL CORPORATIONS ACT. 

Ch. VII. Home Secretary, frame orders and regulations for the govern- 
ment and regulation of the force. 

^The expenses of the force are paid by a rate not exceeding 
8d. in the pound which the Commissioner is empowered to 
lay upon parishes in the Metropolitan Police District, and 
which is to be collected with the poor rate. ^It is received 
and administered by an officer called the Keceiver for the 
Metropolitan Police District, who receives, expends, and ac- 
counts for the moneys in a manner prescribed in the various 
acts referred to below. ^ A sum not exceeding £20,000 a 
year may be contributed by the Treasury to the expenses of 
the Thames police. 

These provisions are the essential part of the acts by which 
/ the metropolitan police were established. They contain 
besides numerous important provisions as to police courts 
and police offences. 

The next general measure relating to the appointment of 
police constables was embodied in the ^ Municipal Corporations 
Act. By this act the councils of the boroughs were em- 
powered to appoint a sufficient number of their own body 
to be, together with the mayor, the watch committee of the 
borough. The watch committee are to appoint a sufficient 
number of fit men (to be sworn in before a borough justice) 
as constables. The constables are to act as such, not only 
within the borough, but also within the county in which such 
borough or part of it is situated, and also within every 
county within seven miles of any part of the borough. The 
watch committee are to make such rules as they think 
expedient for preventing neglect or abuse and for rendering 
the constables efficient in the discharge of their duties. 

These provisions were, I believe, generalised from those 
which were usually inserted in the Local Improvement Acts 
already referred to, ^ and it was accordingly provided that, as 

1 10 Geo. 4, c. 44, s. 23. 

2 10 Geo. 4, c. 44, ss. 10-17, 25-29 ; 2 & 3 Yic. c. 71, ss. 7, 8, 47 ; 20 & 
21 Vic. c. 64, ss. 13-15 ; 24 & 25 Vic. c. 124 ; 34 & 35 Vic. c. 35. 

3 2 & 3 Vic. c. 47, s. 5. 

4 5 & 6 Will. 4, c. 76, ss. 76-86 ; see also 45 & 46 Vic. c. 50, ss. 190-200. 
^ S. 84. This section does not appear to have been re-enacted by 45 & 46 

Vic. c. 50. Improvement Acts are still passed for towns and populous districts 
which are not incorporated, and in order to provide generally for such cases 



COUNTY POLICE ESTABLISHED. 199 

soon as constables have been appointed by the watch com- Ch. Vll. 
mittee, and a notice given as specified in the act, other acts 
relating to the subject shall cease. 

The expenses of the borough police are payable out of the 
borough rate. 

The next step towards the provision of a general system of 
police was taken in 1839 by the Act 2 & 3 Vic. c. 93. This 
act permitted a body of police to be established for a county, 
with the consent of ^the Secretary of State for the Home 
Department, on a representation from the magistrates at 
quarter sessions. ^The Home Secretary makes rules as to 
the government, pay, clothing, and accoutrements of the 
constables. ^The justices appoint for the county a chief 
constable or in certain cases more chief constables than 
one. * The chief constable (subject to the approval of 
at least two justices in petty sessions) appoints the other 
constables for the county, and a superintendent to be at 
the head of the constables of each division of the county, 
and can dismiss all or any of them at pleasure. He has 
the general disposition and government of the constables so 
appointed, subject to such lawful orders as he receives from 
the justices in sessions, and to the rules established for the 
government of the force. 

^ The constables have all the powers of a constable at 
common law throughout every part of their own and of all 
adjoining counties, ^ and are subject to the same provisions 
as to notice, neglect of duty, and the like, as those which have 
been already noticed in reference to the metropolitan police. 

^The expenses are paid by a police rate made by the 
justices and received and expended by the county treasurer ; 
^but one fourth of the expense of the pay and clothing of 
the constables is, if they are certified by the Secretary of 

an act called "The Town rolico Clauses Act, 1847" (10 & 11 Vic. c. 19) 
was passed, which contains provisions similar to those already referred to, 
and IS Usually embodied by reference in the special acta. 

^ In all these acts the expression is ** one of her Majesty's principal Secre- 
taries of State." In practice this means the Secretary of State for the Homo 
Departmcmt. 

2 2 & 3 Vic. c. 93, 8. 8. =» 2 & 8 Vic. c. 93, s. 3, and see 20 Vic. c. 2, 

< 2 & 3 Vic. c. 98, 8. 60. * S. 8. 

» 2 & 3 Vic. c. 93, 88. 10-14. 73^4 yie. c. 88, ss. 8-18, 25. 

8 19 & 20 Vic. c. 69. s. 16. 



200 SUPPRESSION OF OFFENCES BY MILITARY FORCE. 



Ch. VII. State to be in a state of efficiency in point of numbers and 
discipline, to be paid by the Treasury out of the general 
taxation of the country. 

1 The Secretary of State for the Home Department has 
power to appoint three inspectors to inquire into the state 
and efficiency of the county and borough police and to see 
that the provisions of the Police Acts are properly carried out. 

In 1856, after an experience of seventeen years in the 
working of the Act 2 & 3 Yic. c. 93, an act (19 & 20 
Vic. c. 69) was passed which made compulsory the esta- 
blishment of county police in all parts of England in which 
they had not been already established. 

The result is that a disciplined force in the nature of 
a standing army for the suppression of crime and the 
apprehension of offenders has been provided throughout 
every part of England by four successive steps, namely, (1) the 
establishment of the metropolitan police in 1829, (2) that of 
the borough police in 1836, (3) the partial establishment 
of the county police by the permissive act of 1839, and (4) 
its complete establishment by the compulsory act of 1856. 

Extensive additions to the powers of summary arrest which 
were vested in constables by common law have been made 
with respect to particular offences. I do not propose to enter 
at length upon this subject, but the ^ references given below 
will enable any one to do so who is so disposed. 

Suppression of Offences by Military Force. — So 
far I have dealt with the provision made by law for the 
apprehension of offenders in common cases, but there are 
other cases which occur less frequently, and for which it is 
necessary to make special provision as they arise. 

These are offences committed by large numbers of persons 
and with the strong hand. They may vary in gravity from 

1 19 & 20 Vic. c. 69, s. 15. 

2 See 14 & 15 Vic. c. 19, as to persons committing indictable offences at 
night ; 24 & 25 Vic. c. 96, s. 103, as to persons found committing offences 
against the Larceny Act ; s. 104, as to arrest of persons found loitering in 
yards, &c. ; 24 & 25 Vic. c. 97, s. 57, as to offences against the malicious 
injuries to Property Act ; 24 & 25 Vic. c. 100, s. GQ, as to offences against the 
person ; 24 & 25 Vic. c. 99, as to offences relating to the coinage ; 5 Geo. 4, 
c. 83. s. 4, as to offences against the Vagrant Act, and in 34 & 35 Vic. c. 112, 

.8. 15, which amends it. As to police offences in the metropolis see 2 & 3 Vic. 
c. 47. s. 55. See too Dig. Grim. Froc. arts. 96 98. 



i 



SUPPRESSION OF RIOTS. 20I 

an ordinary riot up to high treason by waging war against Ch. Vli. 
the Queen, and they may either be suppressed immediately 
or may grow into civil wars. The law on this subject has 
considerable historical and constitutional interest. 

The definition of the various crimes by which the peace 
may be disturbed will be considered hereafter, but I pro- 
pose at present to state the effect of the law as to their 
suppression. 

The common law right and duty not only of the con- 
servators of the peace but of all private persons (according 
to their power), to keep the peace and to disperse and, if 
necessary, to arrest those who break it, is obvious and well 
settled, but it is also obvious that it can hardly be discharged 
to advantage without special statutory power. In the earlier 
stages of our history the power and turbulence of the nobility 
was so great that private war was all but continual, and the 
preservation of the peace by force of arms was the first duty 
of all rulers. Violence in all its forms was so common, and 
the suppression of force by force so simple a matter, that 
special legislation did not appear necessary in very early 
times. ^The earliest express recognition by statute of this 
state of things to which I can refer occurs in the Statute 
of Treasons. After defining treason positively, the statute 
proceeds to say what shall not be held to be treason. '' And 
*' if percase any man of this realm ride armed covertly'* 
(it should be translated ''openly," the French is "descovert") 
"or secretly with men of arms against any other to slay 
" him, or rob him, or take him, or retain him till he hath 
" made fine or ransom for to have his deliverance, it is not 
" the mind of the king nor his council that in such case it 
" shall be judged treason, but shall be judged felony or 
" trespass according to the laws of the land of old time 
" used and according as the case require th." In other words, 
private war, whatever else it may be, is not treason. 

The first definite legislation as to the suppression of riots 
dates from 1393 (17 Rich. 2, c. 8). 

This statute recites that, notwithstanding the prohibition 

^ See, however, 7 Edw. 1, st.J, A.D. 1279, as to coming armed to Parliameut, 
and 83 Va\w. 1, st. 2 (1804), a 'definition of conspiiators. 



202 EAELY STATUTES AS TO RIOTS. 

Ch. VII of riots which had been made twelve years before (in 1881, 
the date of Wat Tyler's insurrection), great disturbances had 
been made in Chester, Lancashire, and elsewhere (probably 
in connection with the Lollards), and enacts that in cases of 
riot the sheriffs are, '' with the strength of the county and 
" counties to set disturbance against such malice with all 
'' their power and shall take such offenders and them put in 
" prison." This act was supplemented by many others. By 
13 Hen. 4, c. 7 (a.d. 1411), it is enacted that, when a 
riot happens, two justices at least and the sheriff or under- 
sheriff '' shall come with the power of the county and shall 
'' arrest them," and shall have power to record ''that which 
" they shall find so done in their presence," and either try 
the offenders within a month or ''certify the deed and 
" circumstances thereof" to the king and his council, " which 
" certificate shall be of like force as the presentment of 
" twelve," and the offenders are to be punished according to 
the discretion of the king and his council. By the 2 Hen. 
5, st. 1, c. 8, it was added that, if the sheriffs and justices 
made default, any party aggrieved might have a commission 
from the chancellor to the coroners to inquire both into the 
riot and into the default of the justices and sheriffs. The 
justices suppressing the riots were, on the other hand, to be 
paid their expenses. The next chapter (ch. 9) of the same 
statute provides that, if the rioters fly, they may be proclaimed, 
and shall be liable to conviction if they do not come in 
upon the proclamation. ^ Under the Tudors, acts were passed 
which made it felony for twelve persons or upwards to con- 
tinue together riotously for an hour after they had been 
ordered by a justice to disperse, but none of these acts pro- 
vided any special force beyond the power of the county which 
could be used by the sheriff or justices. 

Throughout the seventeenth century, ^Parliament was little 
disposed to legislate against riots, but at the beginning of 
the eighteenth century was passed the famous Act, 1 Geo. 1, 
st. 2, c. 5, still in force and commonly known as the Riot Act. 
It increases the severity of the Tudor Acts (which expired at 

J 3 & 4 Edw. 6, c. 5 ; 1 Mary, sess. 2, c. 12 ; 1 Eliz. c. 16. 

^ See, however, the act for suppressing seditious conventicles, 22 Chas, 2, c. 1. 



EIOT ACT — GOKDON EIOTS. 203 

the death of Elizabeth) by making it felony without benefit Ch. Vll. 
of clergy, for twelve rioters to continue together for one hour 
after the making by a magistrate of a ^ proclamation to them 
to disperse. It then requires the magistrates to seize and 
apprehend all persons so continuing together, and it provides 
that, if the persons so assembled, or any of them, " happen to 
"be killed, maimed, or hurt in dispersing, seizing, or appre- 
" bending, or endeavouring to disperse, seize, or apprehend 
" them," the magistrates and those who act under their orders 
shall be indemnified. As a standing army had come into 
existence before this act passed, the effect of it was that 
after making the proclamation and waiting for an hour the 
magistrates might order the troops to fire upon the rioters or 
to charge them sword in hand. To say so in so many words 
would no doubt have given great offence, but the effect of the 
indirect hint at the employment of armed force given by the 
statute was singular. It seems to have been generally under- 
stood that the enactment was negative as well as positive ; 
that troops not only might be ordered to act against a mob 
if the conditions of the act were complied with, but that 
they might not be so employed without the fulfilment of 
such conditions. This view of the law has been on several 
occasions decided to be altogether erroneous. The true 
doctrine on the subject was much considered, both in the 
case of Lord George Gordon*s Eiots in 1780, and in the case 
of the Bristol Riots in 1831. It may be shortly stated as 
follows. The fact that soldiers are permanently embodied \ 
and subjected by the Mutiny Act to military discipline, and 
bound to obey the lawful orders of their superior officers, 
does not in any degree exempt them from the obligation 
incumbent on all her Majesty's subjects to keep the peace 
and disperse unlawful assemblies. On the contrary, it gives 
them special and peculiar facilities for discharging that duty. 
In a case of extreme emergency they may lawfully do so 

'^ *' Our .sovereign Duly the Queen chargeth and comniandeth all persons 
"being asseniMcd immediately to disperse tlieniselves and ])oaceal)ly to depart 
" to their habitations or to their lawful business, upon the pains contained 
" in the Act made in the lirst year of King Gtiorgt! for preventing tumults 
"and riotous assemblies. God save the Queen." The making of this pro- 
clamation is commonly, but very incorrectly, called reading the Kiot Act, 



204 BRISTOL RIOTS. 

Ch. VII, without being required by the magistrates. ^ In the words of 
Lord Chief Justice Tindal, in his charge to the grand jury at 
Bristol, 2nd January, 1832: — ''The law acknowledges no 
" distinction between the soldier and the private individual. 
"The soldier is still a citizen, lying under the same obligation 
" and invested with the same authority to preserve the peace 
" of the King as any other subject. If the one is bound to 
'' attend the call of the civil magistrate, so also is the other. 
" If the one may interfere for that purpose when the occasion 
"demands it without the requisition of the magistrate, so 
" may the other too. If the one may employ arms for that 
" purpose when arms are necessary, the soldier may do the 
''same. Undoubtedly, the same exercise of discretion which 
• "requires the private subject to act in subordination to, 
" and in aid of, the magistrate rather than upon his own 
" authority before recourse is had to arms ought to operate in 
" a still stronger degree with a military force. But where the 
".danger is pressing and immediate; where a felony has 
" actually been committed or cannot otherwise be prevented 
" and from the circumstances of the case no opportunity is 
" offered of obtaining a requisition from the proper au- 
" thorities, the military subjects of the King, like his civil 
" subjects, not only may but are bound to do their utmost of 
" their own authority to prevent the perpetration of outrage, 
" to put down riot and tumult, and to preserve the lives and 
" property of the people. Still further by the common law 
" not only is each private subject bound to exert himself to 
" the utmost, but every sheriff, constable, and other peace 
" officer is called upon to do all that in them lies for the 
" suppression of riot, and each has authority to command all 
" other subjects of the King to assist them in that 
" under the King." 

The result of this view of the subject is to put soldiers 
acting under the orders of their military superiors in an 
awkward position. By the ordinary principles of the common 
law they are, speaking generally, justified only in using such 
force as is reasonably necessary for the suppression of a riot. 
By the Mutiny Act and the Articles of War they are bound to 
1 5 C. & P. 261, &c. 



POSITION OF SOLDIERS. 205 

execute any Jawful order which they may receive from their Ch. VIT. 
military superior, and an order to fire upon a mob is lawful if • 
such an act is reasonably necessary. An order to do more than 
might be reasonably necessary for the dispersion of rioters 
would not be a lawful order. The hardship upon soldiers 
is, that if a soldier kills a man in obedience to his officer's 
orders, the question whether what was done was more than 
was reasonably necessary has to be decided by a jury, prob- 
ably upon a trial for murder; whereas, if he disobeys his 
officer's orders to fire because he regards them as unlawful, 
the question whether they w^ere unlawful as having com- 
manded something not reasonably necessary would have to 
be decided by a court-martial upon the trial of the soldier 
for disobeying orders, and for obvious reasons the jury and 
the court-martial are likely to take different views as to 
the reasonable necessity and therefore as to the lawfulness 
of such an order. 

I do not think, however, that the question how far superior 
orders would justify soldiers or sailors in making an attack 
upon civilians has ever been brought before the courts of law 
in such a manner as to be fully considered and determined. 
Probably upon such an argument it would be found that 
the order of a military superior would justify his inferiors 
m executing any orders for giving which they might fairly 
suppose their superior officer to have good reasons. Soldiers 
might reasonably think that their officer had good grounds for 
ordering them to fire into a disorderly crowd which to them 
might not appear to be at that moment engaged in acts of 
dangerous violence, but soldiers could hardly suppose that 
their officer could have any good grounds for ordering them 
to fire a volley down a crowded street when no disturbance 
of any kind was either in progress or apprehended. The 
doctrine that a soldier is bound under all circumstances 
whatever to obey his superior officer would be fatal to military 
discipline itself, for it would justify the private in shooting 
the colonel by the orders of the captain, or in deserting to 
the enemy on the field of battle on the order of his imme- 
diate superior. I think it is not less monstrous to suppose 
that superior orders would justify a soldier in the massacre of 



206 SPECIAL CONSTABLES. 

Ch. VIT. unoffending civilians in time of peace, or in the exercise of 
inhuman cruelties, such as the slaughter of women and 
children, during a rebellion. The only line that presents 
itself to my mind is that a soldier should be protected by 
orders for which he might reasonably believe his officer to 
have good grounds. The inconvenience of being subject to 
two jurisdictions, the sympathies of which are not unlikely 
to be opposed to each other, is an inevitable consequence of 
the double necessity' of preserving on the one hand the 
supremacy of the law and on the other the discipline of 
the army. 

Happily the employment of military force for the sup- 
pression of a riot is a matter of rare occurrence in this 
country. When there is reason to fear any tumult with 
which the common police establishment cannot deal, the 
course usually taken is to swear in special constables. ^ The 
acts now in force for that purpose authorise any two justices 
for any county, &c., on being satisfied upon the oath of any 
one witness, that any tumult, riot, or felony has taken place, 
or may be reasonably apprehended within their jurisdiction, 
to nominate as special constables any persons willing to act 
as such, and to administer to them an oath to do their best 
to cause the peace to be kept, and offences to be prevented. 
Such persons have all the powers of constables. If necessary, 
all persons may be required to act as special constables, and 
are liable to be fined £5 if they refuse to serve or to appear 
when summoned to be sworn in. 

These provisions are older than the acts by which police 

were established throughout the country, and are now seldom 

resorted to, as bodies of undisciplined men are apt to do 

more harm than good in cases of riot. On one memorable 

occasion, however (April 10, 1848), the swearing in of a vast 

number of special constables in London and elsewhere, as an 

answer to threats of revolutionary disturbance, was of much 

use, as a proof to demonstration of the fact that the great 

bulk of the population were at that time opposed to any 

resort to violence for political objects. 

1 1 & 2 Will. 4, c. 41, amended by 5 «& 6 Will. 4, c. 43. See also 1 & 2 
Vic, c. 80, as to special constables on railroads, canals, and public works, and 
5 & 6 Will. 4, c, 76, s. 83 (the Municipal Corporations Act). 



MARTIAL LAW. 207 

Martial Law. — The extreme remedy which can be em- Ch. VII. 
ployed in the case of rebellion is a proclamation of martial 
law and operations consequent upon it. The law upon this 
subject was much discussed in reference to the cases of ' 
General Nelson and Mr. Eyre, who were prosecuted for 
murder in causing Mr. Gordon to be executed by martial 
law for his alleged complicity in an insurrection of negroes 
which took place in 1865 at Morant Bay in Jamaica. 
The opinion of the late Mr. Edward James and myself was 
taken as to the legal meaning and effect of a proclamation 
of martial law. I drew the opinion and we both signed it. 
Nothing which took place in the proceedings which followed 
altered my view, and I may add that the charge delivered 
by Lord Chief Justice Cockburn to the grand jury at the 
Central Criminal Court followed almost precisely the state- 
ment of the law given in this opinion. ^ I accordingly reprint 
the material part of it with a few slight changes as repre- 
senting what, upon the fullest inquiry, I believe to be the 
law upon this subject. 

2 The expression " martial law " has been used at different 
times in four different senses, each of which must be care- 
fully distinguished from the others : — 

1. In very early times various systems of law co-existed 
in this country — as the common law, the ecclesiastical law, 
the law of the Court of Admiralty, &c. One of these was 
the law martial, exercised by the constable and marshal over 
troops in actual service, and especially on foreign service.^ 

2. The existence of this system in cases of foreign service 
or actual warfare appears to have led to attempts on the part 
of various sovereigns to introduce the same system in time 
of peace on emergencies, and especially for the punishment 

' Lord Blackburn charged the Grand Jury of Middlesex in one of the pro- 
ceedings against Mr. Eyre on the subject in terms which, so far as they relate 
to the common law of England, do not gi-eatly difler from what is here stated 
(see Mr. Finlason's report of R, v. Eyre, 68-73). J am not sure, however, that 
1 should altogether agree with the view taken by Lord Blackburn of the 
••ffect of the Petition of Right, 

'■^ Tlio case and opinion will be found in Forsyth's ConstitiUional Law, 
p. 551. Mr, Kinlason i)u])lislied a. History of the Jamaica Caw, and other 
works connected with the subject. 

•'' As to this see the ** Statirtcs and Ordinances to be keped in time of Warre." 
—Bla^k Book of the Admiralty, i. 282, &c. See also an essay on the '• Laws 
of War," by Professor Mountague Bernard, in the Oxford Essays for 1866. 



208 



MEANING OF EXPRESSION. 



Ch. VII, of breaches of the peace. ^ This was declared to be illegal by 
the Petition of Eight, as I shall show more fully immediately. 

3. When standing armies were introduced, the powers of 
 the constable and marshal fell into disuse, and the discipline 

of the army was provided for by annual Mutiny Acts, 
which provided express regulations for the purpose. These 
regulations are now contained in the Army Discipline Act, 
1879 (42 & 43 Vic. c. 33), amended by 44 & 45 Vic. c. 57, 
and annually brought into force. ^ They form a code, which 
is sometimes called martial, but more properly military, law. 

4. Although martial law in sense (1) is obsolete, and in 
sense (2) is declared by the Petition of Right to be illegal, 
the expression has survived, and has been applied to a very 
different thing, namely, to the common law right of the 
Crown and its representatives to repel force by force in the 
case of invasion or insurrection, and to act against rebels as 
it might against invaders. 

The provisions of the Petition of Eight (3 Chas. 1, c. 1) upon 
Martial Law are contained in ss. 7, 8^ 9, 10. These sections 
recite that commissions under the Great Seal had lately 
been issued to certain persons to proceed in particular cases 
" according to the justice of martial law;" and that thereby 
persons had been put to death who, if deserving death, ought 
to have been tried in the ordinary way, whilst others, pleading 
privilege, had escaped. Such commissions are then declared 
TO be " wholly and directly contrary to the said laws and 
" statutes of this your realm," and it is provided that hence- 
forth no commissions of like nature may issue forth to any 
person or persons whatsoever. 

The commissions themselves explain the nature of the 
system which the Petition of Eight prohibited. Three, 
which were issued shortly before it passed, are given in 17 
Eymer's Fmdera (pp. 43, 246, 647). They are dated re- 
spectively 24th November, 1617; 20th July, 1620; 30th 
December, 1624. The first is a commission to certain persons 
for the government of Wales and the counties of Worcester, 

^ See 'HaWaxci^s Constitutional History, vol. i. p. 240, seventh edition, ch. v. 
near the beginning. See Vol. 111. p. 109. 
2 Grant v. Gould, 2 H. Blackstone, 69. 



COMMISSIONS OF MARTIAL LAW. 209 

Hereford, and Shropshire. It directs them to call out the Ch. vii. 
array of the county, and then proceeds to direct them to lead 
the array — 

" As well against all and singular our enemies, as also 
" against all and singular rebels, traytors, and other offenders 
" and their adherents, against our Crown and dignitie, within 
" our said principalitie and dominions of North Wales and 
" South Wales, the marches of the same, and counties 
" and places aforesaid, and with the said traytors and rebells 
" from tyme to tyme to fight, and them to invade, resist, 
" suppresse, subdue, slay, kill, and put to execution of death, 
" by all ways and means, from tyme to tyme, by your 
" discretion. 

" And further to doe, execute, and use against the said 
" enemies, traytors, rebells, and such other like offenders 
'* and their adherents afore-mentioned, from tyme to tyme 
" as necessities shall require, by your discretion, the law 
" called martiall lawe according to the law martial, and of 
" such offenders apprehended or being brought into subjection, 
" to save whom you shall think to be saved, and to slaye, 
" destroye, and put to execution of death, such and as many 
" of them as you shall think meete, by your good discretion, 
** to be put to death." 

The second empowers Sir Robert Maunsell to govern the 
crews of certain ships intended for the suppression of piracy, 
and gives him *' full powers to execute and take away their 
" life, or any member, in form and order of martial law." 

The third is a commission to the Mayor of Dover, and 
others, reciting that certain troops, then at Dover, were 
licentious, and empowering them — 

" To proceed according to the justice of martial law against 
" such soldiers with any of our list aforesaid, and other dis- 
" solute persons joining them, or any of them, as during 
" such time as any of our said troops or companies of 
" soldiers shall remain or abide there, and not be transported 
'•' thence, shall, within any of the places or precincts afore- 
" said, at any time after the publication of this our com- 
" mission, commit any robberies, felonies, mutinies, or other 
" outrages or misdemeanours which, by the nuirtial law, 
VOL. I. r 



2IO PETITION OF RIGHT IN MARTIAL LAW. 

Ch. VIL " should or ought to be punished with death, and by such 
" summary course and order as is agreeable to martial law, 
*' and as is used in armies in time of war, to proceed to the 
" trial and condemnation of such delinquents and offenders, 
" and them cause to be executed and put to death according 
" to the law martial, for an example of terror to others, 
'* and to keep the rest in due awe and obedience." 

The distinctive feature in all these commissions is, that 
they authorise not merely the suppression of revolts by 
military force, which is undoubtedly legal, but the subsequent 
punishment of offenders by illegal tribunals, which is the 
' practice forbidden by the Petition of Right. The course 
taken by a lieutenant-general and his provost-marshal in 
the reign of Queen Elizabeth illustrates this. In 1569 
the Earls of Northumberland and Westmoreland had risen 
and besieged and taken Barnard Castle, and committed 
other acts of open treasonable warfare. The rising took 
place and was suppressed in the course of the month of 
December. The Earl of Sussex received from the Queen 
a commission, evidently similar to the one already cited, 
and appointed Sir George Bowes his provost -marshal. Sir 
George Bowes made a circuit through Durham and York- 
shire, between the 2nd and 20th January, 1589, and executed 
at various places 600 persons.^ 

As to the legal character of such punishments, Lord Coke 
observes (Srd Inst. c. 7, p. 52), " If a lieutenant, or other that 
" hath commission of martial authority in time of peace, hang 
" or otherwise execute any man by colour of martial law, this 
" is murder, for this is against Magna Charta, c. 29." ^ 

These authorities seem to show that it is illegal for the 
Crown to resort to martial law as a special mode of punishing 
rebellion. 

Some authorities look in the other direction. In 1799, 
an act of the Irish Parliament (39 ^^reo. 3, c. 11) was 
passed, the effect of which was to put the parts of the 
country which were still in rebellion under military 

1 Sharpe.'s Memorials of the Rebellion, No. 1569, pp. 99, 113, 121, 133, 140, 
143, 153, 163. 

2 See too Hale, Eist. Common Laio, 34. 



STATUTORY REFERENCES TO MARTIAL LAW. 21 X 

<;ommand, according to a system therein described. The Ch. vil. 
preamble states that the rebellion had already been sup- 
pressed, and it sets forth that on the 24th May, 1798, 
Lord Camden did, by and under the advice of the 
Privy Council, issue his orders to all general officers com- 
manding his Majesty's forces, to punish all persons acting, 
ordering, or in any way assisting in the said rebellion, 
according to martial law, either by death or otherwise, as to 
them should seem expedient, and did by his proclamation 
ratify the same. It further goes on to recite, that '' by the 
'' wise and salutary exercise of his Majesty's undoubted 
" prerogative in executing martial law for defeating and 
*' dispersing such armed and rebellious force, and in bringing 
*' divers rebels and traitors to punishment in the most speedy 
*' and summary manner, the peace of the kingdom has been 
" so far restored as to permit the course of the common law 
" partially to take place," &c. And in the body of the Act 
(section 6) there is contained a proviso that " nothing in 
*' this Act shall be construed to abridge or diminish the 
*' undoubted prerogative of his Majesty for the public 
" safety to resort to the exercise of martial law against open 
*' enemies or traitors." 

There is a similar recital in the act known as the Insur- 
rection Act, 3 & 4 Will. 4, c. 4 (a.d. 1883) ; s. 40 of this act 
provides that none of its provisions " shall be construed 
*' to take away, abridge, or diminish the undoubted pre- 
*' rogative of his Majesty for the public safety to resort 
*' to the exercise of martial law against open enemies or 
*' traitors." 

It is impossible to suppose that such declarations as these 
should operate as a repeal of the Petition of Right as re- 
garded Ireland, though the language of the two Acts appears 
to be conflicting. As, however, it merely declares an " un- 
" doubted prerogative of the Crown," it cannot refer to what 
the Petition of Right expressly denied to exist, and therefore 
it must probably bo construed to mean only that the Crown 
has an undoubted prerogative to attack an army of rebels by 
regular forces under military law, conducting themselves as 
armies in the field usually do. This construction is strength- 

P 2 



2 12 WOLFE TONES CASE — MUTINY ACTS. 

Ch. VII. ened by the fact that traitors are coupled with open enemies. 
Now, the force used against an invading army is used for the 
purpose, not of punishment, but of conquest, and thus the 
words in the Irish Act would mean only that the Crown has 
an undoubted prerogative to carry on war against an army 
of rebels as it would against an invading army, and to ex- 
ercise all such powers as might be necessary to suppress the 
rebellion and to restore the peace and to permit the common 
law to take effect. 

As soon, however, as the actual conflict was at an end it 
would be the duty of the military authorities to hand over 
their prisoners to the civil powers. This was affirmed by the 
case of ^ Wolfe Tone, who, having been captured when the- 
French surrendered, was sent up to Dublin barracks, tried by 
court-martial and sentenced to death. The Court of King's 
Bench immediately granted a habeas corpus, and directed 
the sheriff to take into custody the provost-marshal and 
officers in charge, and to see that Mr. Tone was not executed. 
No doubt many military executions took place during the 
Irish rebellion, but an Act of Indemnity was passed in 
respect to them, and it must always be remembered that by 
the laws of war (which are a branch of morals rather than 
of law proper, and prevail not over soldiers, but only between 
contending armies) many severities may be justified, such as 
refusal of quarter and the putting to death of soldiers who 
have surrendered at discretion ; and thus, in a war like that 
of 1798, much might be done which might pass under the 
name of martial law, but which in reality would be no 
more than incidents of ordinary warfare conducted with 
unusual rigour. 

Another argument is drawn from the Annual Mutiny Acts. 
They contain a declaration that ''no man can be forejudged 
" of life or limb, or subjected to any punishment within this 
*' realm by martial law, in time of peace." This has been 
construed to imply that in times of war or disturbance 
martial law is legal. As to this, however, it must be re- 
membered that in its original meaning, the phrase '' martial 
" law " included what we now understand by military law, 
1 27 St. Tr. 624, 625. 



MARTIAL LAW IN CEYLON. 213 

and that one principal object of the commissions, declared to Ch. VIL 
be illegal by the Petition of Right, was the creation of 
military tribunals without Parliamentary authority. Hence 
the words " in peace," which were not in the first Mutiny 
Act, probably mean that standing armies and military courts 
were, in time of peace, illegal, except in so far as they were 
expressly authorised by Parliament. 

The whole doctrine of martial law was discussed at great 
length before a Committee of the House of Commons, which 
sat in the year 1849 to inquire into certain transactions 
which had taken place at Ceylon. Sir David Dundas, then 
Judge Advocate-General, explained his view at length, and 
was closely examined upon it by Sir Eobert Peel, Mr. 
Gladstone, and others. The following answers, amongst 
•others, throw much light on the subject : — 

" 5437. The proclamation of martial law is a notice, to 
'' all those to whom the proclamation is addressed, that there 
" is now another measure of law and another mode of pro- 
*' ceeding than there was before that proclamation. 

" 5459. If a governor fairly and fully believes that the 
*' civil and military power which is with him, and such 
" assistance as he might derive from the sound-hearted part 
*' of the Queen's subjects, is not enough to save the life of 
'^^ the community and to suppress disorder, it is his duty 
*' to suppress by this (i.e. by martial law) or any other 
•" means. 

" 547G. Q. (Sir Robert Peel). A wise and courageous man, 
"' responsible for the safety of a colony, would take the law 
" into his own hands, and make a law for the occasion rather 
" than submit to anarchy ? A. I think that a wise and 
" courageous man would, if necessary, make a law to his 
" own hands, but he would much rather take a law which 
*' is already made ; and I believe the law of England is, that 
" a governor, like the Crown, has vested in him the right, 
*' where the necessity arises, of judging of it, and being 
" responsible for his work afterwards, so to deal with the 
'* laws as to supersede them all, and to proclaim martial 
■" law for the safety of the colony. 

" 5477. (In answer to Mr. Gladstone). I say he is 



2 14 OPINION OF SIR D. DUNDAS. 

Ch. VII. " responsible, just as I am responsible for shooting a man oa 
" the king's highway who comes to rob me. If I mistake 
'' my man, and have not, in the opinion of the judge and 
" jury who try me, an answer to give, I am responsible. 

"5506. My notion is, that martial law is a rule of necessity, 
" and that when it is exercised by men empowered to do- 
'' so, and they act honestly, rigorously, and vigorously, 
" and with as much humanity as the case will permit, in 
" discharge of their duty, they have done that which every 
" good citizen is bound to do." 

Martial law has, accordingly, been proclaimed in several 
colonies, viz. at the Cape of Good Hope, in Ceylon, in 
Jamaica, and in Demerara. 

The views thus expressed by Sir David Dundas appear to 
me to be substantially correct. According to them the words 
" martial law," as used in the expression " proclaiming martial 
'' law," might be defined as the assumption for a certain 
time, by the officers of the Crown, of absolute power, 
exercised by military force, for the purpose of suppressing 
an insurrection or resisting an invasion. The " proclamation " 
of martial law, in this sense, would only be a notice to all 
whom it might concern that such a course was about to be 
taken. I do not think it is possible to distinguish martial 
law, thus described and explained, from the common law 
duty which is incumbent on every man, and especially on 
every magistrate, to use any degree of physical force that 
may be required for the suppression of a violent insurrection, 
and which is incumbent as weU on soldiers as on civilians, 
the soldiers retaining during such service their special 
military obligations. Thus, for instance, I apprehend that 
if martial law had been proclaimed in London in 1780, such 
a proclamation would have made no difference whatever in 
the duties of the troops or the liabilities of the rioters. 
Without any such proclamation the troops were entitled, 
and bound, to destroy life and property to any extent which 
might be necessary to restore order. It is difficult to see 
what further power they could have had, except that of 
punishing the offenders afterwards, and this is expressly 
forbidden by the Petition of Right. 



WRIGHT V. FITZGERALD. 215 

I may sum up my view of martial law in general in the Ch. VIL 
following propositions : — 

1. Martial law is the assumption by officers of the Crown 
of absolute power, exercised by military force, for the suppres- 
sion of an insurrection, and the restoration of order and 
lawful authority. 

2. The officers of the Crown are justified in any exertion 
of physical force, extending to the destruction of life and 
property to any extent, and in any manner that may be 
required for the purpose. They are not justified in the use 
of cruel and excessive means, but are liable civilly or 
criminally for such excess. They are not justified in inflict- 
ing punishment after resistance is suppressed, and after the 
ordinary courts of justice can be reopened. 

The principle by which their responsibility is measured is 
well expressed in the case of ^ Wright v. Fitzgerald. Wright 
was a French master of Clonmel, who, after the suppression 
of the Irish rebellion in 1798, brought an action against 
Mr. Fitzgerald, the sheriff of Tipperary, for having cruelly 
flogged him without due inquiry. Martial law was in full 
force at that time, and an Act of Indemnity had afterwards 
been passed, to excuse all breaches of the law committed in 
the suppression of the rebellion. In summing up, Mr. Justice 
Chamberlain, with whom Lord Yelverton agreed, said : — 
" The jury were not to imagine that the legislature, by 
" enabling magistrates to justify under the Indemnity Bill, 
" had released them from the feelings of humanity, or per- 
" mitted them wantonly to exercise power, even though it 
" were to put down rebellion. They expected that in all cases 
" there should be a grave and serious examination into the 
" conduct of the supposed criminal, and every act should show 
" a mind intent to discover guilt, not to inflict torture. By 
" examination or trial he did not mean that sort of examination 
" and trial which they were now engaged in, but such ex- 
" amination and trial — the best the nature of the case and 
" existing circumstances should allow of. That this must 
" have been the intention of the legislature was manifest from 
" the expression ' magistrates and all other persons/ which 
» 27 St. Tr. 766. 



2l6 PRELIMINARY INQUIRY. 

Ch. VII. " provides that as every man, whether magistrate or not, was 
" authorised to suppress rebellion, and was to be justified 
" by that law for his acts, it is required that he should not 
" exceed the necessity which gave him that power, and that 
" he should show in his justification that he had used every 
*' possible means to ascertain the guilt which he had punished ; 
" and, above all, no deviation from the common principles of 
*' humanity should appear in his conduct." 

Wright recovered £500 damages, and when Mr. Fitzgerald 
applied to the Irish Parliament for an indemnity, he could 
not get one. 

3. The courts-martial, as they are called, by which martial 
law, in this sense of the word, is administered, are not, 
properly speaking, courts-martial or courts at all. They are 
merely committees formed for the purpose of carrying into 
execution the discretionary power assumed by the Govern- 
ment. On the one hand, they are not obliged to proceed in 
the manner pointed out by the Mutiny Act and Articles of 
War. On the other hand, if they do so proceed, they are 
not protected by them as the members of a real court-martial 
might be, except so far as such proceedings are evidence of 
good faith. They are justified in doing, with any forms and 
in any manner, whatever is necessary to suppress insurrection, 
and to restore peace and the authority of the law. They are 
personally liable for any acts which they may commit in 
' excess of that power, even if they act in strict accordance 
with the Mutiny Act and Articles of War. 



^ PRELIMINARY INQUIRY. 

Before the establishment of justices of the peace, cases 
of public importance were inquired into before the Privy 
Council, as I have already observed ; but there seems to have 
been no preliminary inquiry at all in regard to common 
offences, except in the single case of the coroner's inquest. The 
justice of the peace was at first little more than a constable on 
a large scale, whose power even to issue a warrant for the 

1 For the present law on this subject, and on incidental procedure, see 
Dig. Grim, Froc. ch. xiii. — xvii., arts. 99-140. 



coroners' inquests. 217 

apprehension of suspected persons was acquired by practice, Ch. VII. 
and was not derived from express parliamentary authority. 
In early times the formal accusation was often, perhaps 
usually, the first step in the procedure, and the prisoner was 
not arrested until after he had been indicted. This may 
still occur under the existing law, but such an occurrence 
is not usual. In almost every case in the present day a 
suspected person appears before a justice. Witnesses are 
then examined, he is either discharged, bailed, or im- 
prisoned till trial, and is then indicted and tried. 

The earliest instance that occurs of any sort of prelimi- 
nary inquiry into crimes with a view to subsequent pro- 
ceedings is the case of the coroner's inquest. Coroners, 
according to ^Mr. Stubbs, originated in the year 1194, but the 
first authority of importance about their duties is to be 
found in Bracton. 2 jje gives an account of their duties so 
full as to imply that in his day their office was comparatively 
modem. The Statute de Officio Coronatoris (4 Edw. 1, 
St. 2, A.D. 1276) is almost a transcript of the passage in 
Bracton. It gives the coroner's duty very fully, and is to 
this day the foundation of the law on the subject. The 
following are its main provisions : — " A coroner of our Lord 
" the King ought to inquire of these things if he be certified 
" by the King's bailiffs or other honest men of the country ; 
" first he shall go to the places where any be slain, or 
" suddenly dead, or wounded, or where houses are broken, or 
" where treasure is said to be found, and shall forthwith 
" command four of the next towns, or five, or six [i.e. the 
" reeve and four men from each] to appear before him in 
" such a place : when they are come thither the coroner 
** upon the oath of them shall inquire in this manner, that 
" is, to wit, if they know where the person was slain, whether 
*•' it was in any house, field, bed, tavern, or company, and 

^ Const. Hist. i. 505. For present law, see Big. Crim. Proc. ch. vii. arts. 
43-60, as to appointment and removal of coroners, as to inquests, pro- 
cedure, &c., arts. 207-232. 

"^ Bracton, lib. iii. {Dc Corona) ch. v. Sir T. Twiss discusses the question 
whether Bracton copied from the statute or the statute from Bracton, and 
gives reasons in support of the latter view in the introduction to vol. ii. 
of his edition of Bracton, p. Ixi. The Statutum Wallioe contains proviaiona 
substantially identical with those of 4 £dw. 1. 



2l8 



DEPOSITIONS BEFORE CORONER. 



,Ch. VII. '' who were there. Likewise it is to be inquired who were 
" culpable either of the act or of the force, and who were 
" present, either men or women, and of what age soever 
" they be, if they can speak or have any discretion, and how 
" many soever be found culpable in any of the manners 
" aforesaid, they shall be taken and delivered to the sheriff, 
" and shall be committed to the gaoh" 

If any one is found guilty of the murder, the coroner is 
immediately to value his property ^''as if it were to be 
'* immediately sold," and is to deliver it to the township 
which is to answer for it to the justices. 

The statute contains important provisions as to appeals 
which I pass over for the present. It is silent as to the 
course to be taken where houses are broken, though the 
opening words of the statute refer to such cases. In practice 
the coroner's duties have been confined to cases of sus- 
picious death and treasure trove. 

The coroner's duties in respect of inquiries into the cause 
of suspicious deaths have hardly varied at all from the days 
of Edward I. to our own, except as regards the method of 
summoning jurors, and witnesses, and other details. The 
statute book contains a variety of provisions as to matters of 
secondary importance connected with inquests. The only 
ones which need here be mentioned are the statute of Phihp 
and Mary (1 & 2 Phil. & Mary, c. 13, s. 5, 1554), which 
required a coroner to " put in writing the effect of the evidence 
'* given before him being material," and to bind over the 
witnesses to appear at the trial of the person accused. This 
act remained in force till 1826, when it was superseded 
by 7 Geo. 4, c. 64, s. 4, which provides that every coroner 
upon any inquisition before him taken whereby any one 
is indicted for manslaughter or murder, or as an accessory 
to murder before the fact, shall put in writing the evidence 
given to the jury before him, or as much thereof as shall 
be material, and shall have authority to bind over the 
witnesses to give evidence at the trial, and certify and 
return the depositions and inquisition to the court before 
which the person indicted is to be tried. The inquisition 
^ "Sicut statim vendi possunt." 



DEPOSITIONS BEFORE JUSTICE. 219 

of the coroner always was and still is a formal accusation Ch. VII. 
of any person found by it to have committed murder or 
manslaughter, or to have found and concealed treasure, and 
a person may be tried upon such an inquisition without any 
further accusation. 

It is singular that, with the law as to coroners in full 
operation since 1276, no duties of the same sort should have 
been imposed on the justices of the peace appointed forty- 
eight years afterwards, in 1324. 

Whatever may have been the reason, the fact is certain 
that no allusion is made to the holding of any sort of pre- 
liminary inquiry by justices in any statute passed before 
the statutes of Philip and Mary already casually referred to. 
It is probable, however, that from the very earliest times 
magistrates would make a more or less formal inquiry before 
they took steps towards the arrest or bail of a suspected 
person, and it is not at all improbable that the two statutes in 
question may have given legal sanction to a practice which 
had grown, up without express statutory authority. The 
statutes were as follows. By the 1 & 2 Phil. & Mary, 
c. 13 (1554), it is enacted that, when any person arrested for 
manslaughter or felony, or suspicion of manslaughter or felony, 
being bailable by the law, is brought before any two justices, 
they are '' to take the examination of the said prisoner and 
" information of them that bring him of the fact and cir- 
" cumstances thereof, and the same or as much thereof as 
" shall be material to prove the felony shall be put in writing 
" before they make the bailment." The examination and bail- . 
ment are to be certified to the court, and " all such as do de- 
" clare anything material to prove the said murder " (murder is 
not mentioned in the earlier part of the act), '* manslaughter, I 
" offences, or felonies, or to be accessory or accessories to the 
"same as is aforesaid" (it is remarkable that the word i 
" witnesses " is not used) " are to be bound over to appeal' 
" to give evidence at_ the court of gaol deli very." This act was 
confined to the case of prisoners admitted to bail. It was 
followed in the next year (1555) by an act (2 & 3 Phil. & 
Mary, c. 10), which recites that it " does not extend to such 
" prisoners as shall be brought before any justice of peace 



7 



h 



220 SIE JOHN JERVIS'S ACT. 

Ch. VII. " for manslaughter or felony, and by such justices shall be 
" committed to ward for the suspicion of such manslaughter ' 
" or felony and not bailed, in which case the examination 
" of such prisoner and of such as shall bring him is as 

y" necessary or rather more than where such prisoner shall 
" be let to bail." The act then goes on to re-enact, with 
respect to cases in which the prisoners are committed, the 
provisions of the act of the preceding year as to prisoners 
bailed.^ 

These statutes continued to be in force till th^ ypq,y 1^9^^j 
when they were repealed, and re-enacted, and extended to 
misdemeanour by 7 Geo. 4, c. 64, ss. 2 & 3, and this act 
was in its turn repealed and re-enacted in a more elaborate 
form, with some important variations, by 11 & 12 Vic. c. 42 
(1848), which is known as Sir John Jervis's Act. 

The important provisions of Sir John Jervis's Act upon the 
subject of the preliminary inquiry are these. ^The witnesses 
are to be examined in the presence of the accused person, and 
he is to be at liberty to cross-examine them. The depositions 
are to be written down and signed by the magistrate and by the 
witnesses. After all the witnesses have been examined, the 
justice is to say to the accused, " Having heard the evidence, 
" do you wish to say anything in answer to the charge ? You 
" are not obliged to say anything unless you desire to do so, 
" but whatever you say will be taken down in writing and 
" may be given in evidence against you at your trial." 
Whatever he says is then taken down and returned with the 
depositions. ^ The accused person is then to be asked whether 
he wishes to call any witnesses, and if he does, they must be 
examined and cross-examined, and their depositions must be 
taken in the same manner as those of the witnesses for the 
prosecution. ^ If the evidence is in the opinion of the 
justices not sufficient to put the accused person on his trial, 
they are to discharge him. If they think it " raises a strong 
" or probable presumption of " his ** guilt," they are to 
commit him for trial or admit him to bail. ^The accused is 

1 The historical reason for these enactments will be found below, p. 236. 

2 11 & 12 Vic. c. 42, s. 17. See Dig. Crim. Proc. art. 109, &c. 

3 30 & 31 Vic. c. 35, s. 3. ^ S. 25. « S. 27. 



JEKVIS'S ACT AND ACT OF PHILIP AND MARY COMPARED. 221 

entitled to copies of the depositions, and his right to be Ch. Vli. 
represented by counsel or by a solicitor is incidentally 
assumed in ^one section of the act, and is, I believe, never 
disputed in practice. 

A comparison of these provisions with those of the acts of 
Philip and Mary shows several changes of the utmost import- 
ance in one of the most important parts of criminal procedure. 

Speaking generally, the difference between the procedure 
established in the sixteenth century and the procedure of the 
nineteenth is that under the first the magistrate acts the 
part of a public prosecutor, whereas under the second he ^^ 
occupies the position of a preliminary judge. This appears 
in every detail. Under the acts of Philip and Mary the 
accused person is to be examined. This meant that he 
was to be fully questioned as to all the circumstances ^^' 
connected with his supposed offence. Under the act of 
Victoria he can be asked no questions at all, though he is 
invited to make any statement he pleases, being cautioned 
that it will be taken down and may be given in evidence 
against him. Under the statutes of Philip and Mary the 
examination of the witnesses and the recording of their 
depositions was intended only for the information of the court. 
The prisoner had no right to be, and probably never was, 
present. Under the statute of Victoria the witnesses are to 
be examined in the prisoner's presence, and may be cross- 
examined by him, his counsel, or his attorney. Under the 
statute of Philip and Mary the depositions were to be \ J 
returned to the court, but there is evidence to show that ' 
the prisoner was not allowed even to see them. Under the 
statute of Victoria he is entitled to a copy of them. In all 
these particulars the change is uniformly in the same direc- 
tion. The object of the earlier statute is to expose and 
detect a man assumed to be guilty. In the later statute, 
the object is a full inquiry into his guilt or innocence. 

One circumstance must here be mentioned, which makes a 
distinction of considerable importance between the prelim- 
inary criminal procedure of our own country and that of all 
the countries which used the civil law. I refer to the absence 

1 S. 17. 



2 22 TORTURE IN ENGLAND. 

Ch. VII. of the use of torture as a means of collecting evidence whilst 
the prisoner was in custody. It was never recognised as a 
part of the law of England, and its illegality was made the 
subject of much boasting by some of the earliest panegyrists 
of English institutions, and in parti cular Fortescu g., Smith, 
l^^ and Coke. There is, however, proof that it was practised 
for the purpose of obtaining evidence under Henry VIII. and 
his three children, and also during the reigns of James I. and 
Charles I., and that not only in political cases but also in 
the case of common crimes. The proof of this is given in 
Jardine's Beading on Torture, in the appendix to which work 
there are printed fifty-five letters taken from the Council 
books, the first dated 5th November, 1551, and the last 
21st May, 1640, authorising or otherwise relating to the use 
or the threat of torture in a variety of instances. In how 
. many cases it may have been used without such authority, 
and when the practice began, no one can now even guess with 
any plausibility. Why torture was not employed in this as 
well as in other countries it is difficult to say. Probably the 
extremely summary character of our early methods of trial, 
and the excessive severity of the punishments inflicted, had 
more to do with the matter than the generalities of Magna 
Charta or any special humanity of feeling. People who, with 
no sort of hesitation, hanged a man who could not read, or who 
^ being able to read-...had_majxigd_^-^^ido^^^ simply because 
twelve of his neighbours, reporting the village gossip, said he 
had stolen a dress worth two shillings, cannot be called 
scrupulously humane. If their conscience had declined to 
hang him till they had tortured him into a confession capable 
of being verified independently, they would perhaps have been 
a little more humane, though this certainly admits of a 
doubt.i 

However this may be, it is still possible to give evidence 
of the manner in which the old system of preliminary 
investigations worked. In several of the trials reported 
under the Stuarts, the justice who had got up the case 

^ The subject is fully described in Mr. Lea's Superstition and Force, 
Philadelphia, 1878, 371-522. According to Mr. Lea, torture was gradually 
introduced throughout the Continent in the course of the fourteenth, fifteenth, 
and sixteenth centuries. It was connected with the revival of the Roman law. 



DUTIES OF JUSTICES UNDER THE STUARTS. 2 23 

was the principal witness against the prisoner, and detailed at Ch. VII. 
length the steps which he had taken to apprehend him. The 
following are instances : — 

^ In 1664 Colonel Turner was tried for a burglary, together 
with his wife and three of his sons. The principal witness 
was Sir Thomas Aleyn, an alderman of the city. He 
said: "Mr. Francis Tryon" (the person robbed) "put me 
" on the business to examine it. I went and examined the 
" two servants — the man and the maid. Upon their examina- 
" tion I found they had supped abroad at a dancing-school and 
" had been at cards." ..." The man confessed he had been 
" abroad twenty or thirty times at Colonel Turner's house at 
" supper about a year since. The maid denied they had 
" been there at all ; but it is true the man's saying he supped 
*' there (though it was false) was the first occasion of sus- 
" picion against Colonel Turner. When I had examined 
" these two, I went to the examination of Turner, where he 
" was all that day, where at night ? He told me at several 
" places and taverns, and in bed at nine of the clock, and 
" was called out of his bed ; but having myself some suspicion 
" of him, I wished him to withdraw. I told Tryon that I 
'' believed, if he was not the thief, he knew where the things 
" were." Aleyn afterwards charged Turner ; " but he denied 
" it, but not as a person of his spirit, which gave me some 
" cause of further suspicion." He afterwards searched 
Turner's house unsuccessfully ; but next day received in- 
formation from one of the other aldermen which enabled 
him to track Turner into a shop in the Minories, where he 
found him in possession of money which he believed to be 
part of the stolen property. He pressed him to account for 
it, took him to Tryon, managed matters so as to induce him 
to admit to Tryon, upon Tryon' s engaging not to prosecute, 
that he knew where the property was, and, after all sorts 
of manoeuvres, got him to cause his wife to give up a number 
of Tryon' s jewels, and finally committed him and her to 
Newgate. In short, he acted throughout the part of an 
exceedingly zealous and by no means scrupulous detective 
armed with the authority of a magistrate. ^ He detailed in 
1 6 St. Tr. 619, 680. » lb. 672-676. 



224 CASES OF CONINGSMARK AND BUSBY. 

Ch. VII. court the whole of his proceedings, which were very ex- 
peditious. "Thursday," said one of the judges, "was the 
" robbery, Friday he was examined, Saturday the money was 
" brought, and that night the jewels were brought and he 
" committed." 

In the famous case of ^ Count Coningsmark and his alleged 
agents, who were tried for the murder of Mr. Thynne, a 
similar part was taken by Sir John Reresby, the committing 
magistrate. Just as he was going to bed, "Mr. Thynne' s 
" gentleman came to me to grant a hue and cry, and soon 
" after the Duke of Monmouth's page to desire me to come 
" to his master at Mr. Thynne' s lodging, sending his coach 
" to fetch me." Reresby immediately went to Mr. Thynne' s 
and granted warrants to search for several suspected persons. 
At last a Swede was brought before him who confessed that he 
served a German captain who had had a quarrel with Thynne. 
Upon information obtained from the Swede, " having searched 
" several houses till six o'clock in the morning, having been 
" in chase almost the whole night, I personally took the 
" captain at the house of a Swedish doctor in Leicester 
" Fields, I going first into the room." Other suspected 
persons being afterwards arrested were brought to this house 
and ^ examined, and finally were committed for trial to the 
Old Bailey, after being examined on several occasions before 
the King in Council. 

Other cases are mentioned in E-eresby's memoirs in which 
he took a similar part. ^ For instance, under the date of 6th 
of July, 1683, after referring to the Rye House Plot, he 
says: "Six Scotchmen being stopped at Ferry Bridge, by 
" directions from the Secretary, coming from London towards 
" Scotland, and being but slightly examined by the justice 
" of the peace, I caused them to confess much more to me, 
" which I transmitted to the Secretary, as also the examina- 
" tion of another of that nation, who was sent to York Castle, 
" and proved a very dangerous rogue." 

*In 1681, George Busby was tried at Derby assizes for being 

^ 9 St. Tr. 1, and the Memoirs of Sir John Reresby, pp. 236-241. 

2 9 ^^ rp^.^ pp^ 122-124. 

3 Memoirs, p. 281. M St. Tr. 525. 



PROVISIONS AS TO TREASON AFTER 1 688. 225 

a Popish priest. The chief witness against him was Mr. ch. Vli. 

Gilbert, a magistrate of the county, who gave a long account 

of the manner in which he went on several occasions to the 
house where he suspected Busby to be. On one occasion he 
took " a crimson damask vestment, wherein was packed a 
" stole, a maniple of the same (as the Papists call them), an 
'' altar-stone, surplice, and a box of wafers, mass books, and 
*' divers other Popish things." All these he took to Derby 
assizes and showed them to the judge, who directed them to 
be burnt, but Mr. Gilbert '' entreated his favour that I might 
" send them again to the same place for two or three days to 
" make the priest more confident." He went back accord- 
ingly and made a most elaborate search, having a singular 
series of conversations with people in the house, till at last 
he took the prisoner in a curiously contrived hiding-hole, 
near some chimneys, and carried him to Derby, " where after 
" I had taken his examination, I made a mittimus and com- 
" mitted him to Derby gaol." 

I do not think any part of the old procedure operated more 
harshly upon prisoners than the summary and secret way in 
which justices of the peace, acting frequently the part of 
detective officers, took their examinations and committed 
them for trial. It was a constant and most natural and 
reasonable topic of complaint by the prisoners who were 
tried for the Popish Plot that they had been taken without 
warning, kept close prisoners from the time of their arrest, 
and kept in ignorance of the evidence against them till the 
very moment when they were brought into court to be tried. 
This is set in a strong light by the provisions of the 
celebrated act " for regulating of trials in cases of treason 
and misprision of treason" (7 & 8 Will. 3, c. 3), and those 
of ^s. 14 of the Act of Union with Scotland (7 Anne, c. 21). 
The first of these acts provides that every person accused 
of high-treason shall have a true copy of the whole indict- 
ment delivered to him five days at least before he is tried. 
The second extends the time for the delivery of the copy of 
t he indictment to ten days before the trial, and enacts that at 
the same time that the copy of the indictment is delivered 
^ In the KeviHcd StatnteH. In other editions it is s. 11. 
VOL. I. Q 



226 



EARLIER PRACTICE. 



Ch. VII. 



\J 




''a list of the witnesses that shall be produced on the trial 
*' for proving the said indictment, and of the jury, mentioning 
" the names, professions, and place of abode of the said 
" witnesses and jurors, be also given." This was considered as 
an extraordinary effort of liberality. It proves, in fact, that even 
at the beginning of the eighteenth century, and after the expe- 
rience of the state trials held under the Stuarts, it did not occur 
to the legislature that, if a man is to be tried for his life, he 
ought to know beforehand what the evidence against him is, 
and that it did appear to them that to let him know even 
what were the names of the witnesses was so great a favour 
that it ought to be reserved for people accused of a crime 
for which legislators themselves or their friends and con- 
nections were likely to be prosecuted. It was a matter 
of direct personal interest to many members of parliament 
that trials for political offences should not be grossly un- 
fair, but they were comparatively indifferent as to the fate 
of people accused of sheep-stealing, or burglary, or murder. 

It is probable, however, that the practice of the magistrates 
varied, and that where there was no particular reason, political 
or otherwise, for keeping a prisoner in the dark, he was 
allowed, during the interval between the commitment and 
trial, to see his friends and make such preparation for his trial 
as he could. In some remarks ^ by Sir John Hawles (Solicitor- 
General in the reign of William III.), on the trial of Colledge, 
the Protestant joiner, it is said that in murder and all other 
crimes, the prisoner is always permitted to advise with counsel 
before his trial, and that all persons are allowed in such cases 
to have free and private access to him, and the usage foUow^ed 
in the political trials of the seventeenth century is strongly 
reflected upon. This irregular and unsystematic good nature 
may have been sufficient in practice to prevent the infliction 
of gross injustice upon persons capable of making their 
complaints heard, but till the year 1849 prisoners certainly 
had no legal right to know beforehand what evidence was 
to be given against them. I will give a single illustration 
of this, and in giving it, I may observe that it is not so 
easy as it might be expected to be, to discover accounts of 

1 8 8t. Tr. 723-726, 732. 



( 



MODERN PRACTICE AS TO DEPOSITIONS. 2 27 

routine proceedings which are not recorded, and do not be- Ch, vii. 
come the subjects of judicial decision, though they are more 
important than many others of which this cannot be said. 

John Thurtell was tried on the ^ 6th and 7th Jan. 1824, 
and executed on the 9th, for the murder of William Weare, on 
the 24th Oct. 1823. In the Times newspaper, Oct. 31, 
1823, there is a statement that the magistrates' investigation 
commenced at 10.30 p.m. " The prisoners were not brought 
" into the room, it being thought best to keep them ignorant 
" of the entire evidence against them, at least for a short time." 
Thurtell was then called in and asked many questions by Mr. 
Noel, the solicitor for the prosecution. Hunt (Thurtell' s 
accomplice) was afterwards separately examined, which led 
to his making a full confession. The examinations taken 
before the magistrates were published in the newspapers, 
and ^ Mr. Justice J. A. Park made the following observations 
upon the subject in his charge to the grand jury : — 

" These depositions he understood (for he repeated he knew 
" nothing of the fact himself) had already appeared very 
" copiously and even with notes and comments in the public 
" press. Now it appeared to him that the first fault (and he 
" had no doubt it was most unintended, and in noticing it he 
*' did not mean to wound the feelings of any individual) — it 
" appeared to him that the first fault originated with the 
" magistrates in allowing any persons to enter into their 
" private apartments for the purpose of taking notes of their 
" proceedings. He held there was a vast difference between 
" the inquisitorial and the judicial power of the magistrates ; 
" where the magistrate was acting judicially his conduct was as 
*' open to the inspection and judgment of the public as that of 
•* himself and that of his learned brothers on the bench ; to 
" such publicity he had no objection, for he could wish every- 
" thing he said as a judge to be heard and fairly canvassed 
" by the public. ^ He knew he erred sometimes, because he 

^ Mr. (;hitty moved in arrest of judgment that the proceedings were void 
becau8(! part of the trial took place on the Feast of the Lpiphany. 

'^ The charge is published in the 'Times, Dec, 6, 1823, also in two printed 
accounts of the trial which appeared at the time, one of whicli is in the Inner 
Temple library. Both of them appear to be in substance reprints from the Times. 

* This observation is too characteristic to have been invented, and so 
guarantees the authenticity of the report. 

Q 2 



228 



THURTELL S CASE — LATER PRACTICE. 



Ch. VII. 



^ 



'' was human, and nothing that was human could escape 
'* without error. But when a magistrate was acting inqui- 
*' sitorially, when he was taking an inquisition for blood, were 
" these proceedings fit to be known and published to the 
*' world ? He was bound to investigate and inquire — ought 
*' his inquiries and investigations to be conducted in a 
" private or public manner ? The statute law of the land 
'' prescribed the course to be pursued upon such an occa- 
" sion for more than 200 years " (269 years). " There was 
'* a statute of Philip and Mary which stated that deposi- 
" tions before magistrates should be taken in writing in 
'' order that they might be transmitted to the judges 
" who were to try the offence under the commission of 
" oyer and terminer for the county. He appealed to the 
*' experience of every gentleman who heard him, and he 
" knew what his own experience as judge had taught him, 
" whether the constant course was not to transmit them 
*' to the judge, taking care that the accused should not 
'' have an opportunity of seeing them. The prosecutor or 
•' his solicitor might have access to them, but not the party 
'' accused. For what would be the consequence if the 
'* latter had access to them ? Why, that he would know 
" everything which was to be produced in evidence against 
" him — an advantage which it was never intended should 
" be extended towards liim." 

The first alteration made in this state of things was effected in 
1836 by the Prisoners' Counsel Act (6 & 7 Will. 4, c. 114, s. 4), 
which provided that all persons under trial should at their trial 
have a right to inspect all depositions taken against them. 
In 1849, by 11 & 12 Vic. c. 42, s. 27, it was provided that 
the accused should be entitled to a copy of the depositions. 
This change was probably due to a growing sense of the 
unfairness of the law. Probably, too, the establishment of 
a regular police force by the steps already detailed may 
have put the magistrates in a new position in fact before 
the change was embodied in the statute law. As a regular 
force was established, first in the towns and then in the 
country by which charges of crime were investigated, how- 
ever imperfectly, the magistrates would naturally assume a 



HISTORY OF STIPENDIARY MAGISTRATES, 2 29 

more and more judicial position. The inquiry before the Ch. Vil. 

magistrates is now essentially judicial. It may indeed admit 

of a doubt whether it is not too judicial, and whether it 

does not tend to become a separate trial. This tendency 

was certainly encouraged by the power given by 30 & 31 

Vie. c. 35, to the prisoner to call witnesses before the 

magistrates, and to have them bound over to appear at 

the trial and to have their expenses allowed. The power 

was conceded because it was thought hard that a man 

should be prevented by poverty from producing witnesses. 

This may have been a good reason for the act, and it has 

had some collateral advantages, but it has made the law 

more elaborate than it was. 

In the course of the last century a change has taken place 
in the position of magistrates parallel to and closely con- 
nected with the change in the position of constables. 

The management of local public business of all kinds, and 
especially of that part of it which consists in the adminis- 
tration of justice, has happily been at all times, as it still 
continues to be, a matter of honourable ambition and interest 
to large numbers of persons well qualified for the pur- 
pose by education and social standing. No one, however, 
can be expected to devote the whole of his time to the duties 
of a magistrate unless he is paid for it, and in places where 
the population is very dense, there is so much business that 
it cannot be efficiently done except by persons wdio give 
their whole time to it. Moreover, as the law becomes more 
and more elaborate, and the standard of judicial proof rises, 
special knowledge is continually becoming more and more 
necessary for the proper discharge of the duties of a 
magistrate. 

The force of these considerations has been recognised 
by slow degrees, and so strong are the attractions of the 
voluntary system, that up to this time the magistrates are 
unpaid in nearly all the counties, and in most of the cities 
and boroughs. But a different system has been introduced 
in the metropolitan district, and in some other parts of the 
country, by the following steps. 

Throughout a great part of the eighteenth century the 



230 STIPENDIARY MAGISTRATES IN i8tH CENTURY. 

Ch. VII. business of magistrates in that part of London which was 
not included in the City was carried on by magistrates who 
were paid almost entirely by fees. What the fees precisely 
were, and by what law their exaction was justified, I am not 
able to say, nor is it worth while to inquire. One or two 
curious memorials of the state of things which then existed 
will be worth mentioning by way of introduction to the later 
legislation on the subject. 

Writing in 1754, ^ Henry Fielding says of his career as a 
magistrate : ' By composing instead of inflaming the quarrels 
" of porters and beggars (which I blush when I say has not 
" been universally practised), and by refusing to take a 
" shilling from a man who most undoubtedly would not have 
" had another left, I reduced an income of about £500 a 
" year of the dirtiest money upon earth to little more than 
*' £300, a considerable proportion of which remained with 
" my clerk ; and indeed, if the whole had done so, as it 
*' ought, he would be but ill paid for sitting almost sixteen 
" hours in the twenty-four in the most unwholesome as well 
'' as nauseous air in the universe, and which hath in his case 
" corrupted a good constitution without contaminating his 
** morals." 

He observes in a footnote : '' A predecessor of mine used 
" to boast that he made £1,000 a year in his office, ^but how 
'^ he did this (if indeed he did it) is to me a secret. His 
" clerk, now mine, told me I had more business than he had 
" ever known there ; I am sure I had as much as any man 
" could do. The truth is, the fees are so very low when any 
" are due, and so much is done for nothing, that, if a single 
"justice of peace had business enough to employ twenty 
** clerks, neither he nor they would get much by their labour. 
" The public will not therefore think I betray a secret when 
" I inform them that I received from the government a 
'' yearly pension out of the public service money." 

He afterwards says that he resigned the office to ^ his 

1 Introduction to Journal of a Voyage to Lisbon, Works, xii. p. 230, edition 
of 1775. 

^ This reads like an insinuation that he took bribes. 

^ This brother was John Fielding, well known for many years as the blind 
justice. Henry Fielding's son, William Fielding, was also a London magis- 



TRADING JUSTICES — FIRST POLICE ACT. 23 I 

brother, who had always been his assistant. It was by a rare Ch. vit. 
accident indeed that such a man as Fielding found himself 
in such a position. Men of genius are exceptions every- 
where, but a magistrate ought at least to be, as in these days 
he is, a gentleman and a man of honour. It was not so in 
the last century in London. ^ A characteristic account of the 
"trading justices " was given to the Committee of 1816, by 
Townsend, a well-knowm Bow Street runner, who at that 
time had been in the police thirty-four years or more, i.e. 
since 1782 : " At that time before the Police Bill took 
" place at all, it was a trading business; and there was 
" Justice This and Justice That. Justice Welch in Litch- 
" jfield Street was a great man in those days, and old Justice 
'' Hyde, and Justice Girdler, and Justice Blackborough, a 
*' trading justice at Clerkenwell Green, and an old iron- 
" monger. The plan used to be to issue out warrants and 
" take up all the poor devils in the street, and then there 
" was the bailing of them, 2s. 4fd., which the magistrates 
"had; and taking up 100 girls, that would make, at 
" 2s. M.f £11 13s. M. They sent none to gaol, the bailing 
" them was so much better." 

These scandals led to the statute, 32 Geo. 3, c. 53, 
which authorised the establishment of seven public offices 
in Middlesex and one in Surrey, to each of which three 
justices were attached. The fees were to be paid to a 
receiver. No other Middlesex or Surrey justices were to 
be allowed, under heavy penalties, to take fees within the 
jurisdiction of the new magistrates. The justices were to be 
paid by a salary of £400 apiece. 

This experiment proved highly successful. The numbers, 
the salaries, and the jurisdiction, both in point of locality 
and in point of authority, of the metropolitan stipendiary 
magistrates have been repeatedly raised. They are now 
regulated by the ^acts referred to in the note; the effect of 
which is that the Queen has power to establish in the 

trate. Ho gave evidence hofore a CoTnmitce of the House of Commons in 
1816, when he said he had been fifty years in the commisHion for Westminster. 

1 Report of 181(5, pp. 139, 140. 

» 2 & 3 Vic. c. 71, 88. 1 & 3 ; 11 & 12 Vic. c. 42, s. 81 ; 88 & 89 Vlc. 0. 8 
(as to sahiry). 



232 PRESENT STATE OF LAW. 

Ch. vii. Metropolitan District ^thirteen police courts, with any 
 number of magistrates up to twenty-seven, the chief magis- 
trate with a salary of £1,800 a year, and the others with 
salaries of £1,500. They must be barristers of seven years' 
standing. Each is a magistrate for Middlesex, Surrey, Kent, 
Essex, and Hertfordshire, and the chief magistrate is also 
a magistrate for Berkshire. The success of the experiment 
in London led to the introduction of a similar state of things 
in other large towns. 

Stipendiary magistrates may be appointed ( ^ under 5 & 6 
Will. 4, c. 76, s. 99) in any borough on a bye-law, to be 
made by the Council and approved by the Secretary of State, 
fixing the amount of salary which the magistrate is to 
receive. Similar powers are given, by 26 & 27 Vic. c. 97, 
to local boards having authority over a district containing 
more than 25,000 inhabitants. 

Even in towns, however, the majority of the magistrates 
are unpaid. In the City of London the Mayor and Alder- 
men are magistrates by charter, and there are also magis- 
trates by charter in the 88 small corporations not brought 
under the Municipal Corporations Act. In boroughs under 
the Municipal Corporations Act ^ (5 & 6 Will. 4, c. 76) the 
mayor for the time being is a justice of the peace ex officio y 
as also is the recorder (s. 104), if there is one ; (s. 57) and 
the Queen has power (s. 98) to nominate as many other 
justices as she thinks fit from persons resident within seven 
miles of the borough. 

The general result is that the business of holding the pre- 
liminary inquiry and committing or bailing the prisoner is, in 
the metropolitan district and in many large towns and 
populous districts, in the hands of trained lawyers, who act as 
preliminary judges ; that in municipal boroughs it is in the 
hands of the mayor, an elected officer, and a number of 
other justices nominated by the Crown, but unpaid ; that in 

1 There are at present eleven, viz. : 1, Row Street. 2, Clerkenwell. 3, 
- Lambeth. 4, Marlborough Street. 5, Marylebone. 6, Southwark. 7, 

Thames. 8, Westminster. 9, Worship Street. 10, Hammersmith and 
Wandsworth. 11, Greenwich and Woolwich. 

2 After January 1, 1883, under 45 & 46 Vic. c. 50, s. 161. 
, 3 After January 1, 1883, 45 & 46 Vic. c. 50, s. 155. 



BAIL. 233 

the City of London it is vested by charter in the Mayor and Ch. VIT. 
Aldermen ; in boroughs not under the Municipal Act in a 
variety of officers appointed under the provisions of charters 
and private acts; and that in the rest of the country it 
is in the hands of the local gentry, appointed by the 
Crown and exercising their office gratuitously. 

DISCHARGE, ^ BAIL, OR COMMITTAL. 

The next step to the preliminary inquiry held by the 
magistrates is the discharge, bail, or committal of the sus- 
pected person. Little need be said of the law as to the 
discharge or committal of the suspected person. It is 
obvious that, as soon as justices of the peace were erected 
into intermediate judges, charged to decide the question 
whether there was or was not ground for the detention of 
a suspected person, they must have acquired, on the one 
hand, the power of discharge, and, on the other, the power 
of committal. The whole object of the preliminary inquiry 
was to lead to the one or the other result, and the history 
of the preliminary inquiry is in fact the history of the steps 
which led to the determination of this question in a judicial 
manner. The law of bail has a separate independent history. 

The right to be bailed in certain cases is as old as the law 
of England itself, and is explicitly recognised by our earliest 
writers. When the administration of justice was in its 
infancy, arrest meant imprisonment without preliminary in- 
quiry till the sheriff held his tourn at least, and, in more 
serious cases, till the arrival of the justices, which might be 
delayed for years, and it was therefore a matter of the utmost 
importance to be able to obtain a provisional release from 
custody. The right is recognised in curt and general terms 
by Glanville. ^ He says : " Cum quis itaque de morte regis 
" vel de seditione exercitus infamatur aut certus apparet 
" accusator aut non. Si nullus appareat certus accusator 
" sed fama solummodo publica accusat ; tunc ab initio salvo 
" accusatus attachiabitur vel per plegios idoneos, vel per 
" carceris inclusionem." If there is a determinate accuser — 

1 Dig. Crim. Proc. nrts. 186-140. ' Lib. xiv. c. 1. 



2 34 STATUTE OF BAIL, 3 EDW. I, C. 12. 

Ch. VII. " is qui accusatur ut prijediximus per plegios salvos et secu- 
" ros solet attachiari aut si plegios non habuerit in carcerem 
" detrudi. In omnibus autem placitis de felonia solet accu- 
" satus per plegios dimitti prseterquam in placito de homi- 
" cidio ubi ad terrorem aliter statutum est." ^Bracton refers 
to bail in many places, but tbe most general passage in 
his treatise De Corona which I have noticed ^ is to the effect 
that the sheriff ought to exercise a discretion in regard to 
bailing accused persons, having regard to the importance of 
the charge, the character of the person, and the gravity of 
the evidence against him. 

These very ancient authorities are somewhat general in 
their language, but it is still possible to trace the history of 
the law relating to bail from the beginning of the reign of 
Edward I. to our own days. 

The sheriff was the local representative of the Crown, and 
in particular he was at the head of all the executive part of 
the administration of criminal justice. In that capacity he, 
as I have already shown, arrested and imprisoned suspected 
persons, and, if he thought proper, admitted them to bail. 
The discretionary power of the sheriff was ill defined, and 
led to great abuses, which were dealt with by the Statute 
of Westminster the First (3 Edw. 1, c. 12, A.D. 1275). This 
statute was for 550 years the main foundation of the law of 
bail. It recites that sheriffs and others " have taken and kept 
" in prison persons detected of felony, and incontinent have let 
" out by replevin such as were not replevisable, and have kept 
" in prison such as were replevisable because they would gain 
" of the one party and grieve the other.'' It also recites, 
'' that before this time it was not determined which persons 
" were replevisable and which not, but only those that were 
'' taken for the death of man ^or by commandment of the 
''king, or of his justices, or for the forest." It then proceeds 
to enact that certain prisoners shall not be replevisable either 
** by the common writ or without writ ;" that others shall 

1 In cases of treason, ii. 261 ; homicide, ii. 283 ; treasure trove, ii. 287 ; 
rape, ii. 289 ; wounding, ii. 288 ; and see 293. 2 p^ 302. 

^ Coke labours to show that this means *' by a court of justice," through 
which alone the king can act {2nd Inst, p. 186), and see 2 Hale, P. C. 131. 
This may he very sound constitutional doctrine, but it seems to make non- 
sense of the alternative "or of his justices." 



WHAT OFFENCES BAILABLE UNDER STATUTE OF BAIL. 235 

" be let out by sufficient surety, whereof the sheriff will be Ch. VII. 
" answerable, and that without giving ought of their goods." 
The persons not to be bailed (apparently in addition to the 
four classes referred to in the recital) are (1) prisoners out- 
lawed ; (2) men who had abjured the realm (and so admitted 
their guilt) ; (3) approvers (who had confessed) ; (4) such 
as be taken with the manour ; (5) those which have broken 
the king's prison ; (6) thieves openly defamed and known, 
and such as are appealed (accused) by approvers ; (7) such 
as are taken for felonious arson ; (8) or for false money ; (9) 
or for counterfeiting the king's seal ; (10) or persons excom- 
municate taken at the request of the bishop; (11) or for 
manifest offences ; (12) or for treason touching the king him- 
self. On the other hand, the persons to be bailed are (1) 
persons indicted of larceny by inquests taken before sheriffs 
or bailiffs by their office, i.e. at sheriffs' toums or courts leet ; 
(2) or of light suspicion (I suppose wherever indicted) ; (3) 
or for petty larceny that amounteth not above the value of 
12d. if they were not guilty of some other larceny aforetime ; 
(4) guilty of receipt of felons, or of commandment, or of 
force, or of aid in felony done (i.e. accessories before or 
after a felony ) ; (5) guilty of some other trespass for which 
one ought not to lose life nor member, i.e. misdemeanours in 
general ; (6) a man appealed by a prover after the death of 
the prover (if he be no common thief nor defamed). The 
statute does not say distinctly whether persons arrested on 
suspicion (for instance by hue and cry) were to be bailed or 
not. It applies to persons -^"rettes" (which is translated 
" detected ") of felony, as having been wrongfully let out by 
the sheriffs. Whether the word implied that the prisoner 
had been indicted, or whether it meant only in a general 
sense charged, or whether its use invested the sheriffs with a 
discretion, I cannot say. 

The way in which the later statutes are framed seems to 
favour the supposition that the justices at all events could in 
the first instance admit to bail only persons indicted before 

^ Mr. Stu>»lis, in his gloHsary, says, " Refnr/r, lidtair, to accuse, from the 
" Norse rclt, an imputation or accusation." It soon ran into rcctattis from a 
reminiscence of rectum. 



236 justices' power to bail. 

Ch. VII. them in their sessions. However this may have been, the 
Statute of Westminster determined what offences were bailable 
or not for five centuries and a-half. The last statute which 
regulates the sheriffs' power of bailing is 23 Hen. 6, c. 9 
(a.d. 1444). This statute requires the sheriffs in certain 
cases to bail, in terms which seem to imply that their refusal 
to do so had become a well-known abuse. It should be read 
in connection with c. 7 of the same statute, which recites 
many statutes forbidding persons to hold the office of sheriff 
for more than a year, states that they have been frequently 
disregarded, confirms them, and renders a sheriff liable to a 
penalty of £200 to be sued for by a common informer if he 
disobeys its provisions. 

Between 1275 and 1444, however, the sheriffs' powers had 
been to a great extent transferred to the justices of the peace in 
whom the power of admitting prisoners to bail was vested by 
a series of statutes. The 4 Edw. 3, c. 1 (1330), provided that 
persons indicted or taken by the keepers of the peace should 
not be let to mainprise by the sheriffs. The statute of 34 
Edw. 3, c. 1 (1360), gave the justices power to bail in very 
general terms. The statute 1 Rich. 3, c. 3 (1485) recites that 
many persons have been daily arrested and imprisoned, some 
for malice and " sometimes of a light suspection," and accord- 
ingly empowers ''every justice of the peace to let such 
" persons to bail and mainprise in like form as though the 
" said person were indicted thereof of record before the same 
*' justices in their sessions." This looks as if the statute of 
Edward III. applied only to persons indicted at the sessions. 
The statute of Richard III. remained in force for three years 
only. By 3 Hen. 7, c. 3 (1486), it was recited that persons not 
mainprisable were " oftentimes let to bail and mainprise by 
" justices of the peace against due form of law, whereby many 
" murderers and felons escaped." It was enacted therefore that 
the power of bailing should be exercised only by two justices, 
who should let prisoners to bail till the next sessions or gaol 
delivery, and " certify the same at the next general sessions 
" of the peace, or next general gaol delivery." By the same 
statute it was provided that " every sheriff, bailiff of franchise, 
" and every other person having authority or power of keeping 



ORIGIN OF DEPOSITIONS. 237 

** of gaol or prisoners for felony," should certify the names Ch. Vli. 
of all prisoners in their custody to the next court of gaol 
delivery, " there to be calendered before the justices." These 
measures formed a part of the rigorous administration of 
justice by which Henry VII. restrained the disorders arising 
from the Wars of the Roses. They are contained in the 
statute of which the act relating to the Star Chamber (3 Hen- 
7, c. 1), already noticed, formed a part. They show how 
great was the power committed to the justices, and what 
grievous consequences might follow from its abuse. Under 
the earlier law, any one justice of the peace might let any 
offender to bail on any security, and as there was nothing to 
warn the courts of oyer and terminer that this had been done, 
the result might be, and often was, the complete impunity of 
the offender. To require the presence of two justices on the 
occasion was probably some, though no very great, security. 

The system established by the statute of Philip and Mary 
already referred to (Phil. & Mary, c. 13), was much more strin- 
gent. It was, in fact, the origin of the preliminary inquiry 
which has come to be in practice one of the most important 
and characteristic parts of our whole system of procedure, 
but it was originally intended to guard against collusion be- 
tween the justices and the prisoners brought before them. It 
recites that until the making of the statute of Henry VII. *' one 
"justice of the peace in the name of himself and one other of 
*' the justices his companion not making the said justice party 
" nor privy unto the case wherefore the prisoner should be 
" bailed hath oftentimes by sinister labour and means set at 
" large the greatest and most notable offenders such as be not 
" replevisable by the Jaws of this realm ; and yet the rather 
" to hide their affections in that behalf have signed the cause 
" of their apprehension to be but only for suspicion of felony 
" whereby the said offenders have escaped unpunished." It 
then provides that, whenever a prisoner is bailed, the deposi- 
tions of the witnesses are to be taken and returned to the 
court. Justices omitting this duty are to be fined. 

The fact that this act was intended primarily as a security 
ngainst malpractices of the justices, and that the improvement 
wliich it introduced into the administration of justice was 



23^ BAIL UNDER JERVIS's ACT. 

Ch. VII. not its principal object, even if it was distinctly intended, 
explains some singularities in the act. It explains the 

• circumstance that the first statute was confined to cases in 
which prisoners were bailed. If a man was committed to 
prison, there was no fear of the justices unduly favouring him ; 
* I and therefore no need for special precautions against such 
favour. It also explains the circumstance that London and 
other corporate towns and the county of Middlesex were 
excepted from the act. In a great town where there were 
aldermen or other magistrates by charter, and a considerable 
population, the danger of collusion would be less than in the 
country. 

^ These statutes assume that the question who is bailable and 
who not is settled by the statute of Edward I. though there 
are some inconsistencies between them, especially as to bail in 
cases of homicide, to which I need not refer, ^j^^^j^erous 
statutes, relating to particular offences, were passed in the 
seventeenth and eighteenth centuries, but no general provision 
on the subject was made till 1826, when the statute of 7 Geo. 
4, c. 64, was passed, being one of the first attempts to con- 
solidate the criminal law. It repealed all the statutes above 
referred to, so far as they relate to bail, and made other pro- 
visions on the subject which were in their turn superseded 
by those of 11 & 12 Vic. c. 42, s. 23, which are now in force. 
^This enactment provides that the committing justice may 
in his discretion, admit to bail (or commit to prison without 
bail, though the alternative is not expressly mentioned) 
any person charged with felony, or with *any one of the 

1 2 Hale, P. C. 138-140. 

2 For them see 7 Geo, 4, c. 64, s. 32, the repealing clause. 

^ Under this act a single justice may act. Under the Act of 7 Geo. 4, 
c. 64, a complicated arrangement was made, not necessary to be noticed. 
■* 1. Assault with intent to commit felony. 

2. Attempt to commit felony. 

3. Obtaining or attempting to obtain property by false pretences. 

4. Misdemeanour in receiving property stolen or obtained by false pre- 
tences. 

5. Perjury or subornation of perjury. 

6. Concealment of birth of a child. 

7. "Wilful or indecent exposure of the person. 

8. Riot. 

9. Assault in pursuance of a conspiracy to raise wages. 

10. Assault upon a police officer in the execution of his duty. 

11. Neglect or breach of duty as a peace officer. 

12. Any misdemeanour for the prosecution of which costs may be allowed 






OTHER STATUTES AS TO BAIL. 239 

misdemeanours mentioned in the note. The short result is Ch. VII. 
that the justice may in his discretion either bail or refuse to 
bail any person accused either of felony or of any common 
misdemeanour except libel, conspiracies other than those 
named, unlawful assembly, night poaching, and seditious 
offences. In these cases, and in misdemeanours ^created by 
special acts, bail cannot be refused. ^In cases of treason 
no bail may be taken except by order of a Secretary of State 
or by the High Court. The statute contains a series of pro- 
visions,^ to which a general reference is sufficient, as to admit- 
ting to bail, after committal, persons who, in the opinion of the 
committing magistrate, ought to be bailed if they can find 
sufficient sureties. 

Such is the history of the existing state of the law as to 
the bailing by justices of persons accused or suspected of 
crimes, but in order to make the history complete, it is 
necessary to mention shortly a branch of law^ which has 

out of the county rate. The principal statute in force on the subject of 
costs at the time when 11 & 12 Vic. c. 42 was passed {i.e. in 1848) was 7 Geo. 
4, c. 64, s. 23, which empowered the court to allow costs in cases of prose- 
cution for ten specified misdemeanours, viz. all those mentioned in 11 & 12 
Vic. c. 42, s. 23, with the exception of concealment of the birth of a child. 
Probably, therefore, there were in 1848 some provisions in force enabling 
the court to give costs in cases of misdemeanour other than those mentioned 
in 11 & 12 Vic. c. 42, s. 23. 

I have not, however, thought it worth while to examine into this minutely. 
In any event, I suppose the words under consideration contained in 7 Geo. 
4, c. 64, are meant to apply to all misdemeanours, the costs of which may 
be allowed by the court under the law in force for the time being, though 
they do not say so distinctly. Several statutes have been passed since 1848 
which have this effect. By 14 & 15 Vic. c. 55, s. 2, the act of George IV. is 
extended to the following misdemeanours : — 

1. Unlawfully and carnally knowing and abusing any girl being above the 
age of ten (now twelve) and under the age of twelve (now thirteen) years. 

2. Abduction of girls under sixteen. 

3. Conspiring to charge any person with felony or to indict any person 
of felony. 

4. Con8])inng to commit any felony. 

By 24 & 25 Vic. c. 96, s. 121 (larcency), c. 97, s. 77 (malicious injuries to 
properties), c. 98, s. 54 (forgery), c, 100, s. 77 (offences against the person), 
the court may allow the expenses of prosecutions for misdemeanours punish- 
able under those acts. There is a more special provision of the kind in the 
Coinage Act, 24 & 25 Vic. c. 99, s. 42. 

^ This subject will be treated hereafter. Great numbers of misdemeanours 
are created by way of sanction to the provisions of particular administrative 
measures, such as the Lunacy Laws, the Merchant Shipping Acts, &e. 

•^ 11 & 12 Vic. c. 47, 8. 23 (at the end). 

^ Ss. 23 & 24. The act is a most useful one, but it is drawn in a manner 
calculated to drive the reader to despair. The principle on which its ar- 
rangement is l)aHed is that of tlie accidental association of ideas, and tl)«i 
style is to the hist degree verbose and drawling. 



240 WRIT DE HOMINE REPLEGIANDO, ETC. 

Ch. VII. become obsolete. In our own time there is practically no 
reason to fear that justices under a legal duty to admit a man 
to bail will refuse to do so. It was otherwise with the sheriffs 
of earlier times. Not only did the vagueness of the law 
itself leave a wi^fe and ill-defined discretion in their hands, 
but their power was so great that even in plain cases 
they were often disposed to set it at defiance. Hence 
royat^"writs requiring them to do their duty were necessary ; 
and of these there were Several, tlie most important of 
which were the writ de Jiomine replegiando, the writ de 
manucaj)ticne, and the wTit de odio et atid. These writs 
issued out of the chancery to the sheriff or coroner. If 
the first writ was not obeyed, a second writ, which was called 
an " alias," was issued, and if that was not obeyed, a third, 
called a " pluries." The final remedy was an attachment 
under which the sheriff or other officer was imprisoned for 
his disobedience. He might be fined for delaying till an 
''alias "and ''pluries" issued. ^'The writ de homine reple- 
giando was confined (at least after 3 Edw. 1) to cases in 
which a person was imprisoned before trial for an offence 
bailable under the Statute of Bail (3 Edw. 1), though it also 
applied to cases in which a person was unlawfully detained by 
any one not having legal authority to detain him. In such 
cases the sheriff might return that the person detained had 
been "eloigned" {elongates, carried to a distance where he 
could not be found), and upon such a return a writ might 
issue requiring the sheriff to take the captor "in withernam," 
that is, to imprison the captor till he produced the person so 
detained. The writ " de manucaptione " (of mainprise) was 
appropriated to cases in which a person had been taken on sus- 
picion of felony and had tendered " manucaptors " or " main- 
pernors " who had been refused. The difference between bail 
and mainprise is long since obsolete. It is thus described by 
Hale : ^ " Bail and mainprise are used promiscuously often- 
" times for the same thing, and indeed the words import 
" much the same thing, for the former is traditus J. S. and 

^ There were various forms of it, one for common offences, another for 
forest offences. See FitzHerbert, De Naturd Brevium, and see also 2 Hale, 
Pleas of the Crovm. 

'' 2 Hale, P. C. 124. 



WRIT DE ODIO ET ATI A. 24 1 

" the other is manucaptus per J. S. But yet in a proper and Ch. vii. 
" legal sense they differ. 1. Always mainprise is a recog- 
" nizance in a sum certain, but bail is not always so. 2. 
*' He that is delivered per manucaptionem only is out 
*' of custody ; but he that is bailed is in supposition of 
" law still in custody, and the parties that take him to 
, " bail are in law his keepers, and may reseize him to 
" bring him in." The difference between the use of the 
two writs is described in ^ Hale, but is to me very obscure. 

The writ de odio et ^atid was confined to cases of 
homicide, and has an odd history, as it was in itself a 
singularly clumsy procedure. When a person was im- 
prisoned on a charge of homicide, says ^Bracton, "Fieri 
" solet inquisitio utrum hujusmodi imprisonati pro morte 
" hominis culpabiles essent de mo-rte ilia vel non, et 
" utrum appellati essent odio vel atya." If the person 
imprisoned was found guilty, he was not to be admitted to 
bail. If, however, the inqiiest said, "quod per odium et 
" atyam, et contineatur causj\ in inquisitione quo odio vel 
" qua atya diligenter erit causa examinanda, cum sint plures, 
* " &c., et ballivi qui non sine causae cognitione in hujusmodi 
" inquisitionibus , prsetendunt non causam ut causam, et si 
" sufficiens fuerit causa perballium dimittatur." This curious 
passage seems to imply that even in the infancy of our 
law questions arose as to malice similar to those which 
have given so much trouble in our own days. It ob- 
viously was not every sort of hatred or malice in the 
prosecutor which would entitle the prisoner to be bailed. 
The cause of it was to be considered. It is probable 
that the " causa " which was to be diligently examined 
was the evidence of the guilt of the accused man, and that 
"odium et atya" were mere legal figments by which the 
presence or absence of reasonable cause of suspicion was 
obscurely denoted. If a man hated another because he 
Iiad been seen committing a murder, his hatred would 
be no reason why he should not prosecute the criminal. 

1 2 Hale, P. 0. 140. 

- Malice. ** Ex Anglo-Saxonico fortn Miatung' unde An^'lis 'liato' et 
" (fcrniaTiia ' Haet ' . . . vel potius a Greco ^ttj " (Duratige). 
^ Bracton, ii. pp. 292-296. * I suppose sheritrs and coroners. 

VOL. I. R 



242 HABEAS CORPUS. 

Ch. VII. If the prosecutor was unable to assign any cause for the' 
prosecution, it would be not unnatural to say that he must 
hate the person imprisoned. If there was evidence malice 
was immaterial. If there was no evidence malice was in- 
ferred. Hence, the sufficiency of the evidence, being the 
real point, was inquired into under pretence of inquiring 
into the malice. But, however this may have been, it is 
at all events clear that the effect of the writ was to cause a 
preliminary trial to take place in cases of homicide, the 
result of which determined whether the accused should be 
admitted to bail or imprisoned till he was finally tried. If he 
was found to have been accused by malice, he was admitted 
to bail on finding twelve sureties, ^ ''qui manucapiant habendi 
" eum ad primam assisam et coram justitiariis nostris ad 
** respondendum de morte B." 

The writ de odio et atid is referred to in ^ Magna 
Charta. Foster is of opinion (upon grounds which to me 
seem just) that it was abolished by -6 Edw. 1, c. 9 (the 
Statute of Gloucester), in 1278. Coke says in one place 
that it was abolished by the general words of 28 Edw. 3, 
c. 9, and revived by 42 Edw. 8, c. 1, in which I think he 
was mistaken ; elsewhere he contradicts this opinion, saying 
that it was abolished by the Statute of Gloucester. At all 
events it has been obsolete for centuries.^ 

These writs, which issued to the sheriff and the coroner, 
can never have been of the first importance, and must 
have gone into disuse at an early period (^though there are 
a few instances of them in comparatively modern times), as 
from the earliest times ^ the superior courts and the lord 

1 Bracton, ii. 295-297, 

^ " Nihil detiir vel capietur de cetero pro brevi inquisitionis de vita vel 
merabris, sed gratis concedetur et non negetur." — Stubbs, Charters, p. 303. 
Magna Charta, art. 36. 

3 See on this writ, 2 Hale, P.C. 148 ; Coke, 2nd Inst. 421, on Magna Charta, 
c. 26, p. 315, on the Statute of Gloucester, c. 9. See also Foster, 284-285. 

^ See e.g. the case of Witmore for kidnapping in 1682, 8 State Trials, 
1347, and two records of de homine replegiando printed at pp. 1350-1385. 
See also some remarks in Selden's argument in the case of the writ of habeas 
corpus moved for on behalf of Hampden and others, 3 St. Tr. 95. In the 
case of Lord Grey of Werke, a writ de homine replegiando was issued to force 
him to produce his sister-in-law, Lady Henrietta Berkeley, whom he had 
seduced. See 9 St. Tr. 184. _ , 

^ The Courts of Common Pleas and Exchequer had originally to issue the 
writ under a fiction to the effect that the person requiring it was privileged 



HABEAS CORPUS, 243 

chancellor had the right of issuiog the writ of habeas ch. vii. 
corpus, which answered in a simpler and more direct way 
all the purposes of the other writs. 

The history of the writ of habeas corpus, regarded as a 
protection against wrongful imprisonment, hardly falls within 
the scope of a history of the criminal law. It is well known, 
and is associated with the most stirring period of our history. 
I need not therefore refer to it on the present occasion. The 
power of the superior courts to bail in all cases whatever, 
even high-treason, has no history. I do not know, indeed, 
that it has ever been disputed or modified. It exists in the 
present day precisely as it has always existed from the earliest 
times. The only matters connected with it which need be 
noticed here are some of the provisions in the Habeas Corpus 
Act of 1679 (31 Chas. 2, c. 2). This act provides that any 
person committed to prison "for any crime unless for treason 
" or felony plainly expressed in the warrant of commitment," 
may obtain a writ of habeas corpus from the lord chan- 
cellor or any judge of the common-law courts. The writ 
being served on the gaoler, and certain conditions being com- 
plied with it as to expenses, a return must be made to the 
writ within three days. Upon the return, the judge is 
required to admit the prisoner to bail. 

In the 11 & 12 Vic. c. 42, no notice is taken of the Habeas 
Corpus Act, so that it seems that, although in many cases of 
misdemeanour the committing magistrate may refuse bail, 
a judge who knows nothing of the case is absolutely re- 
quired to bail any misdemeanant who takes out a writ 
of habeas corpus. There is indeed an obscure proviso 
which perhaps might be held to meet such a case as the 
end of s, 2, but the act is as ill-drawn as it is celebrated. 

or was to be sued in the court from which the writ issued. See 2 Hale. 
P.C. 144 ; but by 16 Chas. 1, c. 10, s. 6, the Common Pleas obtained original 
jurisdiction in the matter and by 31 Chas. 2, c. 2, all the three courts are 
empowered to grant the writ. 



U 2 



244 CRIMINAL PROCEDURE. 



CHAPTER VIII. 

HISTORY OF THE LAW OF CRIMINAL PROCEDURE CON- 
TINUED. — FORMS OF ACCUSATION AND TRIAL — APPEALS — 
ORDEALS — TRIAL BY JURY. 

Ch. VII r. The subject of the present chapter is the history of the 

— methods of accusation and trial which have prevailed in 

England. These are private and public accusations, and trial 

by battle, by ordeal, by jury, and by the Star Chamber and 

similar courts of which I have ^ already spoken. 

ACCUSATION BY A PRIVATE ACCUSER — APPEALS. 

Accusation and trial are so closely connected that for 
practical purposes they are most conveniently considered 
together. 

Since the Norman Conquest there have been 2 three modes 
of trial in criminal cases, namely, trial by ordeal, trial by 
battle, and trial by jury; and there have been also three 
modes of accusation, namely, appeal or accusation by a 
private person, indictment or accusation by a grand jury, 
and informations which are accusations either by the 
Attorney-General or by the Master of the Crown Office. 

^ Supra, ch. vi. 

2 If compurgation is counted there have been four, but compurgation in 
criminal cases hardly survived the Norman Conquest, though some traces of 
it remained in the hundred and manor courts. In the ecclesiastical courts it 
lasted till 1640, as will appear hereafter. In the form of " wager of law " in 
civil cases it maintained a nominal existence till the year 1834, when it was 
abolished by 3 & 4 Will. 4, c. 42, s. 13. Probably the last case in which 
it was actually put in force was King v. "Williams (2 B. and C. 538, 1824). In 
this case on an action of simple contract the defendant prepared to bring eleven 
*' compurgators, but the plaintiff abandoned his action." Much information 
on this subject is to be found in Pike's History of Crime, The references are 
collected in the Index. 



APPEALS. 245 

The history of these modes of accusation and trial may be Ch. viii. 
conveniently related under one head. ' 

The history of appeals or accusations by a private person 
and trial by battle go together, as trial by battle was an 
incident of appeals. 

The fact that the private vengeance of the person wronged 
by a crime was the principal source to which men trusted 
for the administration of criminal justice in early times is 
one of the most characteristic circumstances connected with 
English criminal law, and has had much to do with the 
development of what may perhaps be regarded as its prin- 
cipal distinctive peculiarity, namely, the degree to which a 
criminal trial resembles a private litigation. In very early 
times this showed itself in the circumstance that the law of 
appeals formed the most, or nearly the most, important and 
prominent part of the criminal law. An elaborate account 
of the procedure connected with them fills a large part of the 
book of Bracton, De Corona, and also a considerable part of 
the first book of Britton, which relates mainly to the same 
subject. Each of these authors, but particularly Bracton, 
goes into the subject with great minuteness, Bracton in par- 
ticular having a separate chapter upon each different kind 
of appeal and mixing it up with definitions of the various 
offences as to which appeals might be brought, forms of 
writs to sheriffs, and much other matter which has now 
altogether lost its interest. 

The following was the substance of the process according 
to which appeals might be made in cases of treason, homi- 
cide, breach of the peace and wounding {de pace et plagis), 
mayhem, breaches of the peace by false imprisonment, rob- 
bery, arson, and rape. The appeal was made before the 
coroner or before more coroners than one. The appellor was 
required to make a minute and strictly formal statement 
before the coroner as to the nature of the offence, ^ setting 
forth a great variety of particulars as to the time, place, and 
circumstances of the offence, in order that the appellee might 
be enabled to defend himself. This statement was enrolled 
by the coroner, and the appellor appears to have been held 
» Brae. 424-83. 



246 PROCEEDINGS IN AN APPEAL. 

Ch. VIII. to it strictly in all subsequent stages of the proceedings. The 
next step was to secure the appearance of the appellee, the 
process for which was to publish the appeal at five successive 
county courts. If he did not appear at the fifth the conse- 
quence was outlawry. There were elaborate rules as to this, 
, and as to the counter process of inlawry, by which the effect 
of outlawry was taken off, and the appellee was permitted to 
defend himself 

If the appellee appeared before the justices he might avail 
himself of any one of a great variety of pleas or exceptions, 
which are detailed at great length in Bracton. ^ He states 
the following as ''ista generalis exceptio et prima": — "Si 
" secta non fuerit bene facta, quia qui appellare voluerit et 
" bene sequi, debet ille, cui injuriatum erit, statim quam 
" cito poterit hutesium levare, et cum hutesio ire ad villas 
" vicinas et propinquiores et ibi manifestare scelera et iu- 
"jurias perpetratas." There were, however, many other 
exceptions, one of which is introduced in the middle of the 
chapter without any special notice, but which must, if it 
really prevailed, have made appeals comparatively unim- 
portant. 2 '< Cadit appellum ubi appellans non loquitur de 
" visu et auditu," but there is reason to think that if this was 
the law in Bracton's time it ceased to be so afterwards. 

3 If the appellee did not plead, or not adequately, battle was 
waged between the parties, but the judges were bound, ex 
officio, to inquire (it is not clearly stated how) into the cir- 
cumstances of the case, and not to allow the battle if the 
case was such that there were against the appellee ^ " pre- 
*' sumptiones quae probationem non admittunt in contrarium, 
''ut si quis cum cultello sanguinolento captus fuerit super 
" mortuum, vel a mortuo fugiendo, vel mortem cognoverit 
" coram aliquibus qui recordum habeant, et hujusmodi tales." 
If the appellee was defeated before the stars appeared he was 
hanged. If he was victorious or defended himself till the 
stars appeared he was acquitted of the appeal, ^ but inasmuch 
as the appeal was considered to raise a presumption of his guilt 
he was to be tried by the country as if he had been indicted. 

1 Bracton, ii. 42.5. -' jf^ p_ 434^ 3 j^^ p, 442. 

-* Jb. p. 452. . 5 2b. p. 448. 






APPEALS IN VARIOUS CASES. 247 

There are some variations from this in ^ Britton's Aecoimt Ch. viii^ 
of Appeals, which was written about 1291, in the time of ~ 

Edward I., and no doubt the practice must have varied, but 
it would not be worth while to go minutely into the subject. 
^ In Hawkins's Fleas of the Crown is to be found an elaborate 
account of the law^ as it stood when all but practically ob- 
solete. I may however observe that the plea of want of fresh 
suit was taken away by the Statute of Gloucester (6 Edw. 1, 
c. 9) in 1278, which allowed the appellor to sue within a 
year and a day. 

The principal points in the history of appeals are as 
follows :— Appeals in cases of treason were properly (it seems) 
brought in Parliament. I have already given an account of 
them and of the manner in which they came to be abolished 
by statute, 1 Hen. 4, c. 14. That statute applies only to 
appeals of treason within the realm. Appeals for treasons 
done out of the realm were not affected by it, but were to 
be brought before the constable and marshal, ^g^ch an 
appeal actually was brought by Lord Rea against David 
Ramsey in the year 1631, and combat was ordered upon it, 
but the king revoked his letters patent to the constable and 
marshal, and the matter came to an end. 

Appeals in cases which were not capital, and in particular 
appeals for blows, for wounds, and false imprisonment, merged 
in actions of tort for damages for those causes. Appeals of 
mayhem lingered a little longer, but became obsolete. 

Appeals of robbery and larceny lasted longer, because at 
Common Law the restitution of property feloniously taken 
could be awarded only when the thief or robber was con- 
victed on an appeal, but this was altered by 21 Hen. 8, 
c. 11, which gave a writ of restitution to the true owner upon 
the conviction of the felon on an indictment. 

Appeals of arson seem to have been discontinued at a very 
early time. 

1 1 Britton (by Nicholls), 97-125. 

2 lik. ii. ch. xxiii. vol. ii. p. 223-281, ed. 1824. The book was written 
early in the eighteenth century, 

2 3 SL Tr. 483-519. Some other cases of trial by combat in civil cases are 
referred to in the notes to this case. One of the combatnnts in the last case 
of trial by battle in a civil action was Lilbnrn, the father of John Lilburn, 
knoMii under Charles I. and Cromwell as " Free-boni John." 



248 APPEALS OF DEATH. 

Ch. VITI. 0^ appeals of rape it is only necessary to say that they seem 

to have differed less than other appeals from indictments, 

and that the offence at which some early statutes on the 
subject were levelled seems to have included what we 
should describe as abduction with intent to marry as well as 
what we describe as rape. 

Hence the only appeals which can be said to have had 
any definite history and to have formed a substantial part 
of the criminal procedure of the country were appeals of 
murder. It seems that appeals continued to be the common 
and established way of prosecuting murder till the end of 
the fifteenth century. Indeed, they were viewed with so 
much and, according to our notions, such strange and un- 
merited favour that in 1482 (22 Edw. 4) they were made 
the subject of an act of judicial legislation of an almost 
unexampled kind. ^FitzHerbert has this note on the 
subject : " Note that all the justices of each bench say that 
" it is their common opinion that, if a man is indicted of the 
" death of a man, the person indicted shall not be arraigned 
" within the year for the same felony at the king's suit, and 
" they advise all legal persons (touts hoes de ley) to execute 
" this point as a law without variance, so that the suit of 
" the party may be saved." This resolution, in which the 
judges, openly and in the plainest words, assumed legislative 
power, was apparently acted upon to the great injury of the 
public, and it was found necessary six years afterwards to 
repeal it by statute. This appears from the recitals and 
provisions of 3 Hen. 7, c. 1, to which I have already 
referred in connection with the Court of Star Chamber. 
This act recites that "murders and slayings of the king's 
" subjects do daily increase, that the persons in towns where 
** such murders fall to be done will not attach the murderer " 
as by law they ought, and that " it is used that within the 
" year and a day after any death or murder had or done the 
*' felony should not be determined at the king's suit for 
" saving of the party's suit " (the appeal), " wherein the 
" party is oftentimes slow, and also agreed with, and by the 
*' end of the year all is forgotten, which is another occasion of 
1 Corone, Ko. 44, H. 22 Edw. 4. 



LAST APPEAL OF MURDEE — ASHFORD V. THORNTON. 



249 



V 



'' murder. And also he that will sue any appeal must sue in Ch, Vlll. 
" proper person, which suit is long and costly that it maketh 
*' the party appellant weary to sue." As a remedy it is provided 
that indictments for murder shall be tried at once, and that 
an acquittal on an indictment shall be no bar to an appeal. 

The effect of this provision seems to have been that the 
indictment, which did not involve trial by battle, was 
usually tried first, and its result was practically con- 
clusive, unless the prisoner was acquitted under circum- 
stances which greatly dissatisfied the parties concerned. 
This state of things continued till the year 1819, though 
the resort to an appeal became less and less common 
as time went on. ^ There are, however, some specimens 
of appeals of murder reported in the State Trials, ^and 
an attempt to abolish them by statute was successfully 
resisted in the years 1768 and 1774. The last appeal 
of niurder ever brought was the case of ^Ashford v. 
Thornton. Thornton, being strongly suspected of having 
murdered Mary Ashford, was tried for that otfence and 
acquitted at Warwick Assizes, and an appeal was brought by 
her brother. On the 2nd November, 1818, the appellant 
read his count (the equivalent of an indictment) in the 
Court of King's Bench, charging Thornton with his sister's 
murder. Thornton then pleaded, " Not guilty, and I am 
" ready to defend the same with my body ; " " and thereupon 
" taking his glove off he threw it upon the floor of the court." 
The appellant then counter-pleaded that Thornton ought not 
to be permitted to wage battle, because the circumstances 
(which are set out in detail in the counter-plea) were such as 
to show that he was guilty. The appellee replied, setting 
out circumstances which he regarded as establishing an alibi 
in his favour. To this there was a demurrer. Upon this 
issue was joined, and an argument took place, in which ^ all 

^ In Spencer Cowper's case, 13 St. Tr. 1190, as also the cases of Banibridge 
and Corbet, 17 St. Tr. 395-7. In liigby v. Kennedy, 5 liitr. 2643, a care- 
fill report i.s given of the proceedings in an appeal on account of their 
rarity. 

'' See an account of this in Home Tooke's defence on Ins prosecution for 
libel in 1777. 20 St. Tr. 71(;, 717. » 1 I'mr. and AM. -lor). 

^ Mr. Chitty and Sir N. Tindai argned the case. it will be f(»uii(I tint 
practically Bracton is the great authoiity. 



250 APPEALS BY APPROVER. 

Ch. VIII. the authorities on the subject are reviewed. The Court 
decided that the result of the authorities was that the 
appellee had a right to wage his body, unless circumstances 
practically inconsistent with his innocence appeared, and that 
such did not appear from the matter put upon the pleadings 
to be the case. The result was that no further judgment was 
given, the appellant not bsing prepared to do battle. The 
proceedings ended by Thornton's arraignment on the appeal, 
to which he pleaded autrefois acquit. 

This proceeding led to the statute 59 Geo. 3, c. 46, by 
which all appeals in criminal cases were wholly abolished. 

It is probable that the commonest and most important 
form of appeal was that of appeal by an approver. The 
nature of this proceeding was as follows : — ^ If a person 
accused of any crime, but especially of robbery, chose to 
plead guilty and to offer to give up his accomplices he was 
handed over to the coroner, before whom he confessed his 
guilt and accused a certain number of other persons, and the 
king might " grant him life and limb if he would deliver the 
" country from a certain number of malefactors either by his 
" body" {i.e. by killing them upon battle waged) *' or by the 
" country " {i.e. convicting them before a jury), '' or by 
** flight." If he failed to fulfil the conditions imposed on 
him he was hanged on his own confession. If the person 
accused was a man of good character, the conditions of the 
proceeding were made less favourable to the approver than 
they otherwise would have been. 

If the approver fulfilled the stipulated condition and dis- 
posed of the prescribed number of accomplices he had to 
abjure the realm ^ " in regno remanere non poterit etiam si 
" velit plegios in venire." 

ACCUSATIONS BY PUBLIC REPORT— ORDEALS — TRIAL 
BY JURY. 

I have already described the manner in which public 
accusations were made before the Conquest. I now come to 
the procedure subsequent to the Conquest. 

1 Bracton, 523, &c. 2 ji^ 532. 



ORDEAL — ASSIZES OF CLARENDON AND NORTHAMPTON. 25 I 

Glanville mentions the subject very slightly. ^ In his short Ch. VIIT. 
chapter on criminal proceedings he describes the procedure 
adopted in the case of each particular crime separately, but 
he seems in all cases to recognize the distinction between an 
accusation by a definite accuser and an accusation by public 
report alone. 

The silence of Glanville upon this subject is, however, of 
the less importance, because we have still ^the text of the 
Assize of Clarendon (1164) and that of the Assize of North- 
ampton (1176), which constitute the legislation of Henry 
II. upon this subject. The Assize of Northampton was a 
republication of the Assize of Clarendon, with some altera- 
tions and additions intended to make the system established 
by it more rigorous. Its provisions are as follows : — '' If any 
" one is accused before the justices of our Lord the King of 
" murder or theft or robbery, or of harbouring persons com- 
" mitting those crimes, or of forgery or of arson, by the oath of 
'' twelve knights of the hundred, or, if there are no knights, 
*' by the oath of twelve free and lawful men, and by the oath 
" of four men from each township of the hundred, let him go 
" to the ordeal of water, and if he fails let him lose one foot. 
" And at Northampton it was added for greater strictness of 
" justice " (25?'o rigor e justitice) " that he shall lose his right 
" hand at the same time with his foot, and abjure the realm, 
" and exile himself from the realm within forty days. And 
" if he is acquitted by the ordeal let him find pledges and 
*' remain in the kingdom unless he is accused of murder or 
" other base felony by the body of the country and the lawful 
" knights of the country ; but if he is so accused as aforesaid, 
*' although he is acquitted by the ordeal of water, neverthe- 
" less he must leave the kingdom in forty days and take his 
" chattels with him, subject to the rights of his lords, and he 
" must abjure the kingdom at the mercy of our Lord the 
** King. This assize is to apply from the time of the Assize 
" of Clarendon to the present time, and from the present 
" time as long as our Lord the King pleases in cases of 
" murder and treason and arson, and in all the aforesaid 

' CiUnville, hook xiv. 

-' SliiM.s, fJharU'i's, 143, 1.10. 



252 INSTANCES OF ORDEALS. 

Ch. V III. " matters, except small thefts and robberies done in the time 
" of war, as of horses and oxen, and less matters." 

The system thus established is simple. The body of the 
country are the accusers. Their accusation is practically 
equivalent to a conviction subject to the chance of a favour- 
able termination of the ordeal by water. If the ordeal fails, 
the accused person ^ loses his foot and his hand. If it 
succeeds, he is nevertheless to be banished. Accusation 
therefore was equivalent to banishment at least. 

We have still some evidence as to the kind of cases in 
which the ordeal was inflicted. It is to be found in the 
Rotuli Curiae Regis for the reigns of Richard I. and John, 
said by Sir F. Palgrave to be the oldest judicial records in 
existence. The following illustrations (amongst others) are 
published by Sir F. Palgrave in his ^ Proofs and Illustrations. 

" Boll of the Iter of Stafford in 5 John. — One Elena is 
" suspected by the jurors because she was at the place where 
- '' Reinalda de Henchenhe was killed, and because she was 
" killed by her help and consent. She denies it. Let her 
" purge herself by the judgment of fire ; but as she is ill, let 
*' her be respited till she gets well.'* 

''Andrew of Bureweston is suspected by the jurors of the 
*' death of one Hervicus because he fled for his death, there- 
*' fore let him purge himself by the judgment of water." 

" Roll of the Iter of Wiltshire, 10 Rich. 1. — The jurors 
" say that Radulphus Parmentarius was found dead with his 
" neck broken, and they suspect one Cristiana, who was 
*' formerly the wife of Ernaldus de Knabbewell, of his death, 
" because Radulphus sued Cristiana in the ecclesiastical court 
" for breach of a promise of marriage she had made to him, 
*' and after the death of her husband Ernaldus, Reginald, a 
'* clerk, frequented her and took her away from Radulphus, 
" and Reginald and Cristiana hated Radulphus for suing her, 

^ This was the common pimisliment for robbery in India under native rule. 
I have myself seen men in Lahore whose hands (as they said themselves) had 
been cut off by Eunjeet Singh for theft. In the Life of Thomas, a Baptist 
missionary at Calcutta, there is an account of the punishment of fourteen 
dacoits in the neighbourhood of Calcutta, each of whom had his hand and 
foot cut off on the 15th February, 1789, on the western bank of the Hooghly, 
opposite Calcutta. — Lewis's Life of Thomas, p. 18. 

^ Palgrave, clxxxv. — clxxxviii. 



ORIGIN OF GRAND JURY. 253 

" and on account of that hatred the jurors suspect her and Ch. viii. 
" the clerk of his death. And the country says it suspects 
" her. Therefore it is considered that the clerk and Cristiana 
" appear on Friday, and that Cristiana purge herself by fire." 

It is impossible to say how long the system of ordeals 
lasted. In the Mirror there is a list of 155 abuses in the 
law of which the author complains. The 127th is — "It is 
" an abuse that proofs and purgations be not by the miracle 
" of God where other proof faileth." ^ The Mirror was 
written in the reign of Edward I., so that it appears probable 
that ordeals fell into disuse in the course of the thirteenth 
century, ^ probably in consequence of the decrees of the 
Lateran Council of 1216. 

The system of accusation which led up to, and to use a 
modem legal expression " sounded," in ordeal, was the origin 
of the grand jury of later times, and of our own days. In 
my chapter on the History of the Criminal Courts, ^ I have 
given Bracton s description of the justices' eyre, as it existed in 
the time of Henry III., and have shown that the accusation of 
suspected persons was only one of its multifarious duties, which 
were of such magnitude and variety that they may properly 
be said at that time to have consisted of a general superintend- 
ence over all the local details of the executive government. 
By degrees the old system of convening something like a 
county parliament, in which every township was represented 
by its reeve and four men, fell into disuse, and the sheriffs 
fell into the habit of summoning only a sufficient number 
of jprohi et leg ales homines to form a grand jury and as 
many petty juries as might be needed for the trial of the 
civil and criminal cases to be disposed of. The law upon 
the subject of the number and qualifications of the men to be 

^ Palgrave, cxiii. 

2 The last reference to the system which I have met with is in one of the 
trials for the Popish Plot. Gavan, one of the live Jesuits who were tried and 
executed upon the evidence of Gates in 1679, begged to be allowcMl "to put 
" himself upon the trial of ordeal " (7 St. Tr. 383), alleging that "in the be- 
** ginning of tht; (Jhurch it was a custom, and grew to a coiiHtant law," that 
a ]>erson accused of a capital offence Hliould be allowed to do so when there was 
only the accuser's oath against his denial. It is odd that Gavan should have 
KUj)posed that judgment by ordeal was a specially ecclesiastical mode of ])ro- 
ceediug, when, in fact, its abolition was due to the ecclesiastical legislation on 
the subject. * Supra, p. 102. 



2 54 ORIGIN OF PETTY JURY. 

Ch. VIII. put upon the pannels formerly was, and to some extent still is, 
~ singularly vague. In practice at the assizes the grand jury 

for counties is always composed of the county magistrates, 
wTTose names are called over by the officer of the court until 
twenty-three at most have appeared. The magistrates, how- 
ever, have no special legal right or duty in the matter. Any 
'' good and lawful men " of the county may serve, no special 
qualification being required, though there are some disquali- 
fications.^ There is no historical interest in the enact- 
ments which have been made upon this subject. The grand 
jury to the present day accuses every person who is put on 
his trial before any court of criminal jurisdiction which tries 
prisoners by a jury. The most interesting point connected 
with their operations is to trace out, if possible, the manner 
in which the powers of the petty jury grew up, and the way 
in which they were exercised. 

The origin of petty juries seems now to be pretty clearly 
determined. Various institutions having more or less resem- 
blance to petty juries are to be found in different ages and 
countries, but the following points connected with their history 
in England are clear beyond dispute, and are those which it 
really concerns us to know. 

When trial by ordeal was abolished and the system of 
accusation by grand juries was established, absolutely no 
mode of ascertaining the truth of an accusation made by a 
grand jury remained. Trial by battle could apply only in 
cases where there was an individual accuser, in other words 
in cases of appeals ; and thus an accusation by a grand jury 
became practically equivalent to a conviction. This led to 
the introduction of trial by jury as we understand it, by the 
following steps. In the first place, the usual mode of determin- 
ing questions of fact known to and practised by the Normans 
was the inquest. An inquest was a body of persons re- 
presenting a certain number of townships or other districts. 
The township being represented by the four men and the 
reeve. They were convened by the representative of the 

^ The law relating to petty juries is now regulated by statute in most 
though not in all particulars (see 6 Geo. 4, c. 50, and some later acts, especially 
33 and 34 Vic. c. 77). As to grand juries, see Dig. Crim. Proc. ch. xxii. 
arts. 184-188. 



INQUESTS. 



255 



royal authority, such as a justice, a sheriff, or a coroner, as Ch 
the case might be, and answered upon oath the particular 
matters proposed to them. The most important instances 
of inquests which can be cited are those by whose report 
were drawn up Domesday Book and the Hundred Rolls, to 
which I have already referred. 

The manner in which the inquests informed themselves of 
the particular facts to which they swore has not been recorded. 
Probably they would be warned beforehand of the matters to 
which they were to depose, and would make local inquiries. 
Possibly they took evidence on the spot. ^ In one of the 
passages I have quoted from the Hundred Rolls for another 
purpose, a complaint is made of the misbehaviour of a local 
noble, who threatened a person in order to deter him from 
giving evidence before the inquest, but upon these matters 
we are left to conjecture, and it is probable that different 
methods would be employed on different occasions and for 
different pur^ioses. Be this however as it may, one point is 
clear. The inquest w^ere the witnesses in contemplation 
of law. It was by their oath, and not by the oath of their 
informants, that the fact to be proved was considered to 
be established, and the only form of perjury known to 
the law of England as a crime till comparatively modern 
times was that form of perjury which was committed by 
giving a false verdict, and which was punished by the 
process known as an attaint. 

The introduction of the inquest into the administration of 
justice took place apparently by steps. It was first intro- 
duced in what were in earlier days the commonest and most 
important of civil causes, namely, trials held in order to 
determine the right to land. In these cases, as in private 
accusations of crime, the mode of trial after the Norman 
(Joucpiest was by battle, but in the reign of Henry II. was 
introduced what was called the "Great Assize." This form 
of trial is thus described by ^ Glanville : " Now the Great 
" Assize is a royal benefit indulged to the people by the 
" clemency of the prince on the advice of the nobles, wliereby 
" life and property are so wholesomely cared for that men 

' Ante, p. 130. 3 Glniivillc, ii. 7, p. 35. 



VIIT. 



256 GRAND ASSIZES. 

Ch. VIII. " can avoid the chance of the combat and yet keep what- 
" ever right they have in their freeholds. And thereby they 
** can avoid the last penalty of unexpected and premature 
" death, or at least of that perpetual infamy, that horrible 
" and shameful word (craven) which sounds sadly in the 
" mouth of the conquered. This constitution arises from 
" the highest equity, for the right which can scarcely be 
" proved by battle after many and long delays is more con- 
" veniently and speedily acquired by the benefit of this 
" constitution. The Assize does not admit of as many 
" essoigns as the combat, as will immediately appear, and by 
" this both the labour of men and the expense of the poor 
" are spared. Besides, this institution has in it more equity 
" than trial by combat in proportion as more weight is to be 
" allowed in judgment to many fit witnesses than to one 
" alone." 

In the following chapters the nature of the institution is 
described : — ^ The defendant " put himself on the assize," 
whereupon trial by combat was stayed, 2 and four knights 
were summoned to return twelve knights of the vicinage to 
say (ad recognoscendum) by their oaths ^ which of the parties 
had most right to the land. These recognitors were obviously 
witnesses, as appears from the * account given of their pro- 
ceedings wheu they met. Upon their assembly it is said 
either all will know where the right is, or some will and 
others will not, or all will not. If some or all are ignorant, 
and say so on their oaths, they are to be excluded. If some 
are on one side and some on the other, " adjiciendi sunt alii 
''donee duodecim ad minus in alterutram partem acquieverint." 
It is also said that they were to swear to matters within their 
own knowledge, or " per verba patrum suorum et per talia 
" quibus fidem teneantur habere ut propriis." ^ Severe 
punishment was provided for those who swore falsely. ^ If 
the claimant could not find twelve persons to swear to his 
right he was thrown back on the remedy by combat. 

Even before the abolition of ordeals it seems to have been 

1 Glanville, c. 8. _ ^ lb. c. 11.^ 

3 " Quis eorum scilicet an tenens an petens majus jus habeat in sua de- 
"manda" (Glanville, c. 14). 

4 lb. c. 17. ^ lb. c. 19. « Jb. c. 21. 



BRACTON ON JURIES. 257 

not very unusual for persons accused of crimes by what Ch. Vlll. 
answered to the present grand jury to purchase from the 
king the privilege of going before a petty jury, which was 
to determine finally on his guilt or innocence, ^ Sir F. 
Palgrave gives several instances of this. When ordeals were 
discontinued it is probable that petty juries would come into 
general use, and such appears to have been the case. 

Bracton's account of the proceedings before justices is ex- 
ceedingly full, but it is so discursive that it is by no means 
easy to be sure as to its meaning. It appears, however, to 
be as follows ; ^ First, the justices are to give a charge to 
the persons appearing before them, and after various con- 
sultations and explanations a kind of grand jury, consisting 
of four knights from each hundred, is to be sworn to answer 
to what is required of them. They are to give a schedule 
of suspected persons, whom the sheriff is forthwith to seize 
and cause to appear before the justices "ut justitiarii de iis 
" faciant justitiam." After stating this Bracton goes to 
other subjects, but returns at last to the question of public 
accusations. ^ Jn a passage too long to extract at length he 
gives the following account of the procedure : — ^ When a man 
is indicted the justice is to examine the twelve who indict 
him (this must mean the grand jury) as to their means of 
knowledge. Whereupon " Dicet forte aliquis vel major pars 
" juratorum quod ea quae ipsi proferunt in veredicto suo 
" didicerunt ab uno ex conjuratoribus suis," and this being 
followed up the report may at last be traced, "ad aliquam 
** vilem et abjectam personam et talem cui non erit fides 
" aliquatenus adhibenda." What is to happen in this case 
is not stated, but it is observed that on account of the 
possibility of false and malicious accusations the accused 
person may object to individuals or townships. At last twelve 
persons are to be sworn and ^ " secundum eorum veredictum 

^ Proofs and Illustrations, clxxvi. , clxxvii. , and clxxxvi. , No. 17. A person 
appealed of rol)bcry, " aflert domino regi unani mnicani aigenti pro liabendft 
" inciuisitione per legales milites utruni cnlpabilia sit iude necne . . . oblatio 
" r(!ci[»itur. .Juratores dicunt (juod rcvera contencio fuit inter gardinariuni 
•' j»ra;<iieti Iloberti, Osmund nomine, et ([uosdam garciones, sed Ranulfus" (the 
I'riKoner) "non fuit ihi nee nialecredunt eum de aliquil roberia vel do aliquo 
" malo facto eideni." '■^ liracton, ii. 234-241. 

3 lb. c. xxii. pp. 450-462. * lb. p. 454. ^ lb. p. 456. 

VOL. I. S 



258 BRITTON ON JURIES. 

Ch. VIIL " aut sequitur deliberatio aut condemnatio." " The justices 
" are to observe this form of inquisition by the country 
" generally in all inquests to be made of the death of a man, 
" when any one puts himself on the inquest either willingly 
" or from caution, or by necessity, in all crimes greater or less ; 
" but the justices can, if they think it expedient on a neces- 
" sary cause, and if a great crime lies hid, and the jurors wish 
'' to conceal the truth from love, or hatred, or fear, separate the 
" jurors from each other and examine them separately to 
" disclose the truth sufficiently." 

The difficulty is to ascertain from these passages whether 
they speak of two juries or of only one. I am disposed to 
think that they refer to two, as two distinct occasions are 
mentioned in which the jurors swear. It must be admitted 
that the matter is left in great doubt, but whatever may 
have been the truth on this subject, it is obvious that in 
Bracton's time the jury were not only witnesses, but witnesses 
who might be and habitually were examined and cross- 
examined by the justices. 

Bracton's work is supposed by Sir H. Twiss to have 
been written before 1258. Britton, who took Bracton's 
work to a great extent as a foundation for his own, ^wrote, 
it is supposed, about 1291-2. In his time there certainly 
were two juries, and each was composed of witnesses. ^ The 
proceedings of the grand jury are first described much as 
Bracton describes them, though more succinctly. ^ The 
persons indicted are then to be called upon, and if necessary 
compelled, to put themselves on their country or to plead 
guilty. Then comes * a passage obviously founded upon the 
one just quoted from Bracton, which leaves no doubt as to 
the functions of the petty jury : " And afterwards let the 
" jurors be charged of what fact they are to speak the truth, 
" and then go and confer together and be kept by a bailiff." 
. . . *' If they cannot all agree in one mind let them be 
*' separated and examined why they cannot agree ; and if the 
" greater part of them know the truth and the other part 
" do not, judgment shall be according to the opinion of the 

1 Nicliolls' Britton, Ixix. 2 Britton, 22-26. 

3 Ih. 26-31.^ 4 Ih. 31, 32. 



BRITTON ON JURIES. 259 

" greater part. And if they declare upon their oaths that Ch. Vlll. 

'' they know nothing of the fact, let others be called who do 

*' know it ; and if he who put himself on the first inquest 

" will not put himself on a new jury, let him be remanded 

" back to penance till he consents thereto. We will also 

'' that if any man who is indicted of a crime touching life 

" and limb and perceives that the verdict of the inquest on 

*' which he has put himself is likely to pass against him, 

''desires to say that any one of the jurors is suborned to 

' condemn him by the lord of whom the accused holds his 

" land, through greediness of the escheat or for other 

" cause by any one else, the justices thereupon shall carefully 

" examine the jurors whether they have reason to think that 

" such slander is true. And often a strict examination is 

" necessary, for in such case inquiry may be made how the 

"jurors are informed of the truth of their verdict; when 

" they will say by one of their fellows, and he peradventure 

" will say that he heard it told for truth at the tavern or 

" elsewhere by some ribald or other persons unworthy of 

" credit, or it may be that he or they by whom the jurors 

" have been informed were intreated or suborned by the 

" lords or by the enemies of the person indicted to get him 

" condemned, and if the justices find this to be the fact, let 

" such suborners be apprehended and punished by imprison- 

" ment and fine. And if the jurors are in doubt of the matter 

" and not certain, the judgment ought always in such case to 

" be for the defendant." 

There is, however, evidence that though the jurors were 
themselves the witnesses by whose evidence the prisoner's 
fate was decided, other witnesses might be and some- 
times were called upon criminal trials. ^ Witnesses are ex- 
pressly mentioned in the Leges Henrici Primi as taking part 
in trials. Moreover 2 one of the entries reprinted by Sir F. 
Palgrave from the records of the eyre of Gloucester m the fifth 
year of Henry III. is as follows : " William, son of Matilda, 
" was taken and imprisoned at Gloucester for the death of 
" William Blund, whom he killed ; and Nicholas Church, John, 

* Leaes II. P. v. "i?c Causcurum Proprietatibun." — Thoriic i. p. COB. 
 Palgrave, Proofs and Illustrations , clxxxvii. 21. 

s 2 



26o PROGRESS OF JURIES. 

Ch. VIII '* the son of Melisent, Walter de Havena, Walter Smith, and 
'' Richard de Herdeshelt, and several others who were present 
" when he was killed, testified that they saw when he killed 
" him, and that they immediately upon the fact took him 
'' still holding: in his hand the stick with which he killed 
" him, and besides the four next townships testify to the 
" same thing ; and besides .... and Dionysia, the wife of 
" William Blund, appealed him of the aforesaid death as seen 
" by her ; and besides twelve jurors say that he is guilty. 
" And he defends himself against all. But because he was 
'' taken still holding the stick in his hand with which he 
'' killed him, and all with one voice say he is guilty, it is 
" adjudged that he cannot defend himself, and therefore let 
" him be hanged." 

In this case there were five witnesses, four townships, and 
a jury, by all of whom the accused was said to be guilty. 

It is not my intention to try to trace out in detail the 
history of trial by jury. The authorities already given show 
with sufficient clearness how it originated, but the steps by 
which the jury ceased to be witnesses and became judges of 
the evidence given by others cannot now be traced without 
an amount of labour out of proportion to the value of the 
result. I will, however, state the very little which I am able 
to say upon the subject. As appears by the passage quoted 
above from Glanville, the process which took place when a 
jury said that they, or some of them, were ignorant on the 
matter to which they were to swear, was what was called 
" afiforcement." That is, new witnesses were added until the 
number required was made up. This process was well 
exemplified by the ^ practice, which was followed when deeds 
or charters which had been attested by witnesses were to be 
proved. The witnesses were, it seems, a kind of assessors 
to the jury, and this was the origin of what, till very modern 
times indeed, was an inflexible rule of evidence that the 
attesting witnesses to a written document must in all cases 
be called or accounted for. As the juries became less 

^ Bracton, i. 298-300 ; Fortcscue de Laudihus, ch. xxxii., and Seidell's 
note ; Brooke's Abt^idgment Testmoignes. As to the modern law, see my Digest 
of the Law of Evidence, articles 66 and 67, and note xxviii. 



A TRIAL BY JURY IN I303. 26 1 

numerous and transactions more complicated, this clumsy Cm. viir. 
system would naturally lead up to the system now in use, by 
which the jury judge of the evidence of the witnesses. 

One step which would naturally conduce to this result has 
left behind it traces which are still distinguishable. The 
juries in early times seem to have been accustomed not 
only to give general verdicts of guilty, or not guilty, but to 
answer questions as to specific facts from which the judgment 
followed as a legal consequence. A remarkable instance 
occurs in the ^ Year-look, 30 & 31 Edw. 1 (1303). "It was 
'' presented by the twelve of Y, that Hugo " committed a 
rape. Hugo was brought to the bar by Brian and Nicholas. 
The justice (his name is not given) told them to stand back, 
as the prisoner could not have counsel against the king, 
wherefore " prsecipimus ex parte regis quod omnes narra- 
'' tores qui sunt de consilio vestro recedant." Hugo was 
then asked what he had to say to the charge against him ? 
He replied that he was a clerk. The justice replied that he, 
having married a widow, was *' bigamus," and had so lost his 
privilege. Hugo said that his wife was not a widow when he 
married her. '' Justiciar ius : Hoc debet statim sciri, et hone- 
" ravit duodecim si Hugo, &c., qui dixerunt quod ipsa fuit 
" vidua quando dominus Hugo contraxit cum ea. Sed notan- 
'' dum quod, &c. " {i.e. the jurors), " de novo non fuerunt 
"jurati quia prius jurati." Hugo was then required to 
answer further. He objected that he was a knight and his 
jurors were not his equals, not being knights. " Et nomina- 
" bantur milites." He was asked if he challenged any of 
them. He said he would not consent. The judges could 
take what inquest they pleased. The justice said in that 
case he must be put to his penance, and he had better plead. 
Hugo then asked to have his challenges heard. The justice 
agreed, but Hugo said he could not read, and asked for 
counsel. ^The justice asked how he could claim clergy if 
he could not read ? He was refused counsel, but allowed to 
be prompted by a person who could read. He then made 

' Pul)liHli(Ml l)y direction of tlio Master of the HoIIh iu 1863. The cnso 
referred to is in A])pc.ndix ii. p. 529-.'»;{2. 

- Upon this, " 11 Ufjo stetit inpncc quasi confusus. Justiciar i us : Non sitin 
" stupefocti, mode est tempus loquendi." 



262 CASE OF BERKELEY — INQUEST OF OFFICE. 

Ch. VIII. his challenges, which were allowed. The justice then repea 

the charge to the jury, ending thus : " Ideo vobis injungimus 
'' in virtu te sacramenti utrum dominus Hugo dictam mu- 
" lierem rapuit vel non nobis dicatis. Duodecim : Nos 
" dicimus quod ipsa rapiebatur vi per homines domini 
" Hugonis. Justiciarius : Fuitne Hugo consentiens ad 
*' factum vel non ? Duodecim : Non. Justiciarius : Cogno- 
*' verunt ne eam camaliter. Duodecim : Sic. Justiciarius : 
" Muliere invita vel consentiente ? Duodecim : Consentiente. 
" ^ Credo quod deberet hie quod tamen post defuit. Justi- 
*' ciarius : Domine Hugo quia ipsi vos acquietant nos vos 
*' acquietamus." 

In the case of Berkeley, tried in Parliament for the murder 
of Edward II., ^ already referred to for another purpose, the 
jury were questioned in like manner in detail, and gave 
specific answers. Other instances of the same kind might 
be alleged. 

It is obvious that if the same jury had to answer to facts 
which might have no connection with each other (as whether 
Hugo was higamus, and whether he had committed rape), 
they would have to rely upon evidence given by others, and 
not upon their own knowledge, and it is also obvious that 
when a variety of questions arose, more or less connected 
with and dependent upon each other, it would be the most 
convenient course to explain to them how the law stood, and 
to take from them a general verdict. In such a case as 
Hugo's, for instance, a modern judge would say, " before you 
" can return a verdict of guilty, you must be satisfied not 
*' only that the fact took place, but that the woman did not 
'' consent ; if you are not satisfied as to either point you will 
" acquit the prisoner." Whenever this stage was reached our 
present system would be established in principle. 

^ I have found one case in which an inquest of office set 
forth the reasons which led them to find that one of the 
king's tenants was a minor at a given date. The reasons 
are that several knights and squires on the inquest remem- 

1 This seems to be a remark of the reporter, indicating that something was 
left out. 

2 ^niQ^ p_ 147^ 3 2 Rot. Par. 291a, 292& (1366). 




FORTESCUE ON JURIES. 263 

bered the child's father coming to the siege of Calais, and ch. VIII. 
saying, he had just had a son born ; that the then abbot 
of St. Augustine at Canterbury was about a month before 
his death godfather to the child ; and that the date of the 
abbot's death was fixed by the date of the conge d 'dire to the 
Chapter for a new abbot, and that a Sir Johan Freebody, 
who was treasurer to Thomas Daldon, the other godfather 
of the child, charged Daldon, in an account bearing a 
certain date, with a silver cup and ewer for a christening 
present to the child. In this instance the inquest acted 
partly on their own knowledge and partly on facts proved 
by witnesses. 

Whatever inferences may be drawn from the scattered 
illustrations and broken hints which are to be found on the 
subject in the Rolls and the Year-books, it is abundantly 
clear that trial by jury as we now know it, was well estab- 
lished, at least so far as civil cases were concerned, in all its 
essential features, in the middle of the fifteenth century. 
This is put beyond all question by the full account given 
of the subject in Fortescue, De Laudihus Legicm Anglice, which 
must have been written between 1460 and 1470. After"" 
describin*,^ at full length the preliminaries of the trial, he says 
that the record and the issue having been read to the jury, 
^ " Each of the parties by themselves, or their counsel in 
" presence of the court, shall declare and lay open to the jury, 
'' all and singular, the matters and evidences whereby they 
'' think they may be able to inform the court concerning the 
'* truth of the point in question, after which each of the parties 
" has a liberty to produce before the court all such witnesses 
" as they please or can get to appear on their behalf, who 
" being charged upon their oaths shall give in evidence all 
" that they know touching the truth of the fact concerning 
" which the parties are at issue." He afterwards speaks of 
the jurors themselves as "well acquainted with all the 
" facts which the evidences depose, and with their several 
** characters." ^j^ reference to criminal trials Fortescue 
does not mention witnesses at all. He dwells upon the power 
of the prisoner to challenge thirty-five jurors peremptorily. 
^ Fortescue, c. xxvi. p. 89 (Amos's edition). " lb. c. xxxvii. p. 92, 98. 



264 



FOKTESCUE ON JURIES. 



Ch. VIII. An innocent man need fear nothing, because " none bul 
" his neighbours, men of honest and good repute, against 
" whom he can have no probable cause of exception, can find 
. " the prisoner guilty.'* Nor can a guilty person escape. 
" Such a man's life and conversation would be restraint and 
*' terror sufficient to those who should have any inclination 
" to acquit him." ^ The prince argues with his chancellor 
in such a way as to imply that though the jury were 
witnesses, other witnesses were or might be called. " Wit- 
" nesses cannot even bring about such a wicked device " 
(as a conviction based on perjury), ''when what evidence 
*' they give in must be in open court, in the presence and 
" hearing of a jury of twelve men, persons of good character, 
" neighbours where the fact was committed, apprised of 
" the circumstances in question, and well acquainted with 
" the lives and conversations of the witnesses, especially as 
" they be near neighbours, and cannot but know whether 
" they be worthy of credit or not. It cannot be a secret to 
" every one of the jury what is done by or amongst their 
" neighbours. I know of myself more certainly what is 
'' a-doing at this time in Berry where I reside, than what is 
" doing in England, neither do I think it possible that such 
" things can well escape the observation and knowledge of 
" an honest man as happen so near to his habitation, even 
" though transacted with some kind of secrecy." 

2 Further on the prince objects that he fears the law of 
England as to juries is repugnant to Scripture. ''It is 
" written in your law that the testimony of two men is true." 
** That in the mouth of two or three witnesses every w^ord 
" may be established." ^ The chancellor replies to this, 
that in various obvious cases the rule supposed to be laid 
down in Scripture cannot apply, and that the prince misap- 
prehends it, but his most important remark is that "the 
" law of England never decides a cause only by witnesses 
" when it can be decided by a jury of twelve men." 

These passages show, I think, with sufficient clearness that 



^ Fortescue, c. xxviii. p. 100. The work is in the form of a conversation 
between Fortescue and Prince Edward, the son of Henry VL 



lb. c. xxxi. p. Ill, &c. 



3 lb. 



HALIFAX GIBBET-LAW. 265 

by the middle of the fifteenth century the fundamental Ch. Vlii. 
principles of trial by jury in criminal cases had been ^ . Tv^ 
established to a great measure, though not entirely. 1 1 

It is always difficult to find definite illustrations of the 
working of rude and obsolete institutions, but I am able to 
offer two which I think will throw some light upon the nature 
of trial by jury in its early and rude form. 

The first is taken from a curious tract, called '^Halifax and 
Us Gihhet-law, which contains not only a full account of the 
gibbet-law of Halifax (said by Sir F. Palgrave to be the last 
vestige of the law of infangthief), but also what purports to 
be a report of the last case in which it was put in force. 

Halifax, it is stated, is part of the duchy of Lancaster and 
the manor of Wakefield, and lies within the forest of Hard- 
wick. It has an ancient custom " that if a felon be taken 
" within their Liberty with goods stolen out of or within the 
" Liberty or Precincts of the said Forest either handhabend, 
" backberand, or confessand, cloth or any other commodity of 
" the value of thirteen-pence-halfpenny, that they shall after 
" three markets or meeting-days within the town of Halifax 
" next after such his apprehension, and being condemned he 
" shall be taken to the gibbet and there have his head cut off 
" from his body." This statement is intelligible though not 
very grammatical. ^The author justifies the wisdom and 
humanity of the custom at length on grounds which are 
not convincing, but his account of the details of the 

^ Halifax and its Oihhet-law placed in a true light, together with a 
dcscri2)tion of the town, the nature of the soil, the temper and disposition >y 

of Die people, the antiquity of its customary law, and the reasonableness thereof, 
vriLh (many other thinf,'.sj ; Halifax (no date, but apparently published about ' 
the middle of the last century. In the catalogue of the bookseller from 
whom I bought it, it is said to be written by " Dr. Samuel Midgley." The 
report of the trial is a hundred years subsequent to the trial, but it is 
hardly likely to have been forged. 

'-' llere is one of his arguments. ** It is a received maxim that the common 
" law is grounded upon reason, and so is undeniabh!. Now l)y the common 
" law it is fiilony and death for any person to steal a thing which is al)Ove the 
" value of twelvei)ence, on a verbal proof: surely then it must needs i)ass 
" undeniable tliat it ought to be felony and death to him that steals anything 
" above the value of thirt(!en-i)eii(;(!-halfi)enny, more especially ought it to bo 
'* HO where the person is remarkably known and taken in the fact, that the 
" goods are ])rought in for evidence against him " (the bricks are there to this 
day, tliereforo deny it not), "and the truth thereof cnnliniusd by his own 
" confession ; this is a matter of fact which cannot be denied by any prudent 
'* and considering person." 



266 



PROCEDURE AT HALIFAX. 



Ch. VIII. procedure is extremely curious, and carries us back to remote 
antiquity. There were seventeen townships and hamlets in 
the liberties, who chose the most wealthy and best-reputed 
men for their juries. When a felon was arrested, he was 
brought before the bailiff of the lord of the manor of Wake- 
field. The bailiff had a gaol in which he detained the 
prisoner. He then issued a summons to» the constables of 
four several towns to require four frith burghers from each of 
those towns to attend at a time and place fixed. " At which 
" time of appearance both the felons and the prosecutors are 
"brought before them face to face, and the thing stolen 
" produced to their view," ..." and if upon examination they 
" do find that the felon is not only guilty of the goods stolen, 
" but also do find the value of the goods stolen to be of the 
" value of thirteen-pence-halfpenny or above, then is the 
" felon found guilty by the said jury : grounding that their 
" verdict upon the evidence of the goods stolen and lying 
" before them, together with his own confession, which in 
" such cases is always required, and being so found guilty 
" is by them condemned to be beheaded according to ancient 
" custom." After conviction the felon was sent to prison for 
a week or thereabouts. There were three market-days in 
every week, and he was exposed publicly at each in the stocks 
with the goods on his back or by him, after which he was 
executed by the gibbet, a primitive guillotine, of which a cut 
is given in the frontispiece. It seems that the rule that 
the prisoner must be taken "confessand" was considered to 
be satisfied if he could not give a satisfactory account of his 
possession of the stolen goods, " and doth refuse when asked 
" to tell where he found it or how he came by the same ; nor 
" doth produce any witness to testify for him how he came 
" by such things, but seeks to evade the truth of the matter 
" by trivial excuses, various reports, and dubious stories." 

In illustration of the custom there is given " a true and 
"impartial narrative of the trials of Abraham Wilkinson, 
"John Wilkinson, and Anthony Mitchell," in April, 1650, 
which was the last instance in which the custom was put 
in force. 

At the complaint and prosecution of Samuel Colbcck, John 



LAST TRIAL AT HALIFAX. 267 

Tielden, and John Cutforth, "these above-said felonious per- Ch. Vili 

" sons " were, " about the latter end of April/' 1650, taken into 

the custody of the chief bailiff of Halifax, who forthwith issued 

his summons to the constables of Halifax, Sowerby, Warby, 

and Kircoat, requiring them to attend, each with four men 

from his constabulary, at the high bailiff's house in Halifax, 

on the 27th April, " to hear, examine, and determine," the 

cases. 

Six'teen jurors (the names are given) accordingly came to 
the bailiff's house, where '' in a convenient room " they were 
brought face to face with the prisoners and the goods. The 
bailiff then delivered a short charge in these words : " Neigh- 
" hours and friends, you are summoned hither according to 
^' the antient custom of the forest of Hard wick, and by virtue 
*' thereof you are required to make diligent search and inquiry 
" into such complaints as are brought against the felons 
" concerning the goods that are set before you, and to make 
" such just, equitable, and faithful determination betwixt 
" party and party as you will answer it to God and your own 
" consciences," which said, the several informations were 
brought in and alleged against them in manner and form 
following : — 

" The information of Samuel Colbeck of Warby. 

" The informant saith and affirmeth that upon Tuesday, 
" the 19th of April, 1650, he had feloniously taken from 
" his tenters by Abraham Wilkinson, John Wilkinson, and 
" Anthony Mitchell, sixteen yards of russet-coloured kersey, 
".part of which cloth you have here before you, and of which 
" you are to inquire of its worth and value, and take their 
" confession here before you." 

The information of Cutforth related to the colts ; and the 
information of Fielden to certain cloth as to which he said 
{inter alia) that one Mrs. Gibson said that Abraham Wilkin- 
son delivered it to her. To this Wilkinson said tliat "he 
" did not confess the aforesaid piece to Gibson's wife, but 
" saith that he was by and present when John Spencer, a 
" soldier in Chesterfield, did deliver the said piece unto 
" Gibson's wife." 

" Thereupon some debates arising amongst the jurymen 



268 LAST TRIAL AT HALIFAX. 

Ch. VIII. " touching Abraham Wilkinson's reply to the last information, 
" after some mature consideration the jury, as is customary 
" in such cases, did adjourn themselves unto the 30th day of 
" April, resolving that day fully to give in their verdict. And 
" accordingly on the said 30th of April they met together 
" again at the bailiff's house, together with the informers, 
" felons, and stolen goods, some whereof were placed before them 
" in the room, and the rest in such convenient places where 
" the jury might view them. And after a full examination 
" and hearing of the whole matter, they with united consent 
" gave in their verdict in writing in the words following : — 

" An inquisition taken at Halifax, the 27th and 30th days 
" of April, 1650, upon certain informations hereunto annexed. 
" To the complaint of the said Samuel Colbeck, &c. 
" We, whose names are hereunto subscribed, being sum- 
" moned and empanelled according to ancient custom, do find 
" by the confession of Abraham Wilkinson of Warby, within 
" the liberty of Halifax, being apprehended and taken, that 
" he, the said Abraham Wilkinson, took the cloth in the in- 
" formation mentioned, with the assistance of his brother, 
" John Wilkinson." They then describe the cloth, and value 
it at nine shillings. 

The information of Cutforth as to the colts is dealt with 
in a similar way. It begins : " We, the aforesaid empanelled 
"jury, do find by the free confession of Anthony Mitchell that 
" John Wilkinson did take the black colt of John Cutforth's 
" from Durker Green, and that himself and Abraham Wilkin- 
" son were there present at the time, and also that Anthony 
" Mitchell himself did sell the aforesaid colt to Simeon 
" Helliwell." . . . . "Likewise, we find by the confession of the 
" aforesaid Anthony Mitchell that Abraham Wilkinson did 
" take the grey colt of Paul Johnson's from off Durker Green 
" aforesaid, and that John Wilkinson was with his brother 
" Abraham Wilkinson when he took him, and that the said 
" Anthony Mitchell was by and present when Abraham 
" Wilkinson did stay and bridle the grey colt. Also he con- 
" fesseth that himself and John Wilkinson did leave the said 
"colt with George Harrison." The colts were valued at 
forty-eight shillings and three pounds respectively. 



KEMARKS ON THE TRIAL. 269 

After these proceedings follows " the determinate sentence," c^ vill, 

which recites the principal matters found, and then goes on : 

" By the ancient custom and liberty of Halifax, whereof the 
" memory of man is not to the contrary, the said Abraham 
" Wilkinson and Anthony Mitchell are to suffer death by 
" having their heads severed and cut off from their bodies 
" at Halifax gibbet, unto which verdict we subscribe our 
" names, the 30th April, 1650." 

They seem to have been executed accordingly. 

I have given a full account of this strange proceeding, not 
only on account of its great curiosity, but because its details 
illustrate many obscure points in the ancient law. This trial 
took place, it must be recollected, under the Commonwealth, 
and only three years before a comprehensive scheme for re- 
forming the law, to be hereafter noticed, was brought before the 
Barebones Parliament ; but at every point it displays traces of 
the earliest form of our judicial institutions. The townships 
are represented each by four men, who are brought up by the 
constable, who represented and succeeded to the reeve. The 
bailiff charges them to inquire, much as a justice might have 
charged the inquest in Bracton's day. Obviously they must 
have questioned the prisoners in order to " take their confes- 
" sions." When Abraham Wilkinson contradicts a statement 
ascribed to him, they adjourn for three days, probably to make 
local inquiries. After the adjournment they talk it all over 
again with the prisoners and get further confessions. Pro- 
bably they may have gone in the interval to Durker Green 
and questioned Simeon Helliwell and George Harrison, and 
seen other places and persons, and it seems that in some way 
or other their inquiries were favourable to John Wilkinson, 
who seems to have been acquitted, notwithstanding Mitchell's 
confessions, which implicated liim. Lastly, the juries not 
only find all the facts in detail, but they, like the suitors of 
the old County Courts, are the judges, and the bailiff merely 
registers their sentence. On the other hand, the informations 
and the inquest were obviously drawn up by a lawyer, who 
probably was tlie bailiff, and tliis shows liow great an authorit> 
he might come to have over the deliberations of juroi-s, and 
jilso how the jury hold tliat intermediate position between 



270 COURT OF THE LIBERTY OF THE SAVOY. 

Ch. viii. modern witnesses and modern jurors which I have tried ta 
sketch. Lastly, the case shows how liberally the stewards 
and jurors of franchise courts would be likely to construe the 
restrictions laid upon the right of " infangthief " by the rule 
that the criminal ought to be handhabend or backberand, 
and even " confessand.'' 

There is nothing whatever to show that either Abraham 
Wilkinson or Anthony Mitchell was taken " handhabend or 
" backbarend/' unless those words include every case in which 
the goods were taken and produced before the jury, and in 
which there was evidence that the prisoner took them. As 
for " confessand," it seems probable that the prisoner's con- 
fessions consisted only in unsatisfactory answers and alleged 
admissions to persons other than the jurors. 

The second illustration is taken from an institution still in 
full vigour — the Court of the Liberty of the Savoy, the pro- 
ceedings of which will help us to realize the nature of the 
ancienb trial by jury, and to understand how they dispensed 
with witnesses. The manor and honour of the Savoy lies 
immediately to the west of the place where Temple Bar 
formerly stood, and extends for some distance westwards 
along the bank of the river, as far (I believe) as the middle 
of Cecil Street. It is divided into four wards, and has a 
court leet which meets twice a year, within a month after 
Easter, and a month after Michaelmas. Special courts can 
be held if required. The court consists of the ^ steward, who 
presides, and eight burgesses, two from each of the four wards 
of the manor. A jury for the year, consisting of sixteen, is 
annually elected at the court. The steward fixes the day, and 
the bailiff summons the burgesses and the jury, as well as a 
proper number of residents to be sworn in as jurymen for the 
year following. The jury are called over, and absentees, 
if any, having been fined, are sworn; the form of oath 
being the same as that which is administered to a grand 
jury at Assizes and Quarter Sessions. They then make their 
presentments, which are in writing, and are signed by the 

1 My old and valued friend, Mr. S. B. Bristowe, Q.C., formerly M.P. for 
Newark, and now Judge of the Nottingham County Court, is the steward, and 
to him I owe the curious information in the text. 



PROCEDUKE AT COURT OF THE SAVOY. 27 1 

jury. These presentments are brought about as follows : — Ch. vill. 
If any inhabitant thinks that a neighbour's house is unsafe, 
or that a house is disorderly, or the like, he complains verbally 
or otherwise to the foreman of the jury for the time being. 
The foreman calls the jury together, and they satisfy them- 
selves in any way they please as to the matter complained of. 
They then give notice to the party complained of, and if the 
nuisance is not abated to their satisfaction the matter is em- 
bodied in the form of a presentment, which is given in at the 
court day to the steward. The steward inspects the present- 
ment to see if it is in proper form and relates to a matter 
within the jurisdiction of the court, and if he approves of it 
(he informs me that he never has occasion to disapprove) and 
if the jury think that the party presented ought to be fined, 
four of their number are appointed affeerers, and they " affeer " 
or settle the fine. The finding of the jury is thus conclusive 
upon the facts, although they hear no evidence, examine no 
witnesses, and go through nothing in the nature of a trial. 
The leet jury thus represents that stage in the history just 
related at which ordeal and purgation had fallen into disuse, 
and the substitute for them had not been discovered. 

I have been favoured with a copy of the presentments at 
a court held on the 26th April, 1880. The most important 
of them states in language of the simplest and most untech- 
nical kind, that in October, 1879, the attention of the jury 
was called to a certain disorderly house kept by a person 
named, that thereupon they gave that person notice to dis- 
continue her business within a week, that she did so, but 
afterwards returned and carried on the same business. The 
jury accordingly present that the woman named does carry 
on the business in question and that her house is a common 

nuisance, and they " therefore amerce the said in the 

" sum of £50," which said " amercement is affeered by A. B. 
" C. and D." 

This instance actually existing amongst us appears to me 
to throw great light upon the manner in which trial by jury 
originated. It is an institution fit for a small precinct where 
every one knows every one and can watch and form an opinion 
upon what goes on. In the few streets which form the liberty 



272 PROCEDURE AT COURT OF THE SAVOY. 

Cii. Vlli. of the Savoy, such an institution is, I have no doubt, as 
useful and efficient as it is curious. If it were extended to 
a large town or county it obviously could not be worked 
at all. 

Even in the Savoy it would probably not be permitted to 
continue if it involved a result more serious than a money 
fine, or was applied to offences less easy of proof than keeping 
disorderly houses, and other common nuisances or petty 
offences. In the case in question the steward made an estreat 
directed to the bailiff requiring him to raise the £50, and 
the bailiff returned that the person concerned had no goods 
within the jurisdiction. 

If after this she continued her misconduct, she would have 
to be indicted at the Quarter Sessions, when she might 
be imprisoned, though on the other hand she would be 
entitled to trial by a petty jury. 



CRIMINAL TRIALS. 273 



CHAPTER IX. 

HISTORY OF THE LAW OF CRIMINAL PROCEDURE CONTINUED. 
— LEGAL INCIDENTS OF A CRIMINAL TRIAL — INDICT- 
MENT AND INFORMATION — ARRAIGNMENT, TRIAL, AND 
VERDICT. 

Having in the last chapter given an account of the various Chai'. ix. 
forms of accusation and trial which have finally merged 
into trial by jury, I propose in the present chapter to 
give an account of the legal incidents of a criminal trial. 
These are the indictment or information, the arraign- 
ment of the prisoner, and his trial down to the verdict and 
judgment. 

Indictments. — The indictment was originally an accusa- 
tion presented by the grand jury upon their own knowledge, 
whereby some person was charged with a crime. This, 
however, has long ceased to be the case, and iDdictments are 
now drawn and proved in the following way : — 

When a person is committed for trial, some one, as often as 
not a police-constable, is bound over by the magistrate to 
prosecute, and the depositions are sent to the clerk of 
assize if the case is to be tried at the assizes, or to the clerk 
of the peace if it is to be tried at the Quarter Sessions. A 
solicitor is in practice almost always employed by the prose- 
cutor, and he as a rule instructs the clerk of assize or clerk 
of the peace to draw the indictment, the depositions serving 
as instructions. The prosecutor, however, may, if he prefers it, 
have his indictment drawn by counsel or by his own solicitor, 
and counsel are often instructed for this purpose if the case 
presents any peculiarity. The indictment being drawn has 

VOL. I. T 



2/4 



INDICTMENTS. 



CHA.P. IX. endorsed upon it the names of the witnesses, and the soHcitor 
for the prosecution takes it and them to the grand jury-room, 
to which he is admitted or not as the grand jury think proper. 
The grand jury sit by themselves and hear the witnesses one 
at a time, no one else being present except the solicitor for 
the prosecutor if he is admitted. The name of each witness 
examined before the grand jury is initialled by the foreman ; 
and when they have heard enough to satisfy themselves that 
a prima facie case is or is not made out against the prisoner, 
they endorse upon the indictment " a true bill," or " no true 
bill," as the case may be (in the days of law Latin the 
endorsements were " Billa Vera," or '' Ignoramus "), and 
come into court and hand the indictments to the clerk of 
assize or clerk of the peace, who says, '' Gentlemen, you find 
" a true bill," or " no true bill "as the case may be, " against 
" A. B. for felony or misdemeanour." If the finding is 
" no true bill," the matter drops and the prisoner is dis- 
charged, though he is liable to he indicted again. If the 
finding is " a true bill," the trial proceeds and the " bill " 
becomes an indictment. As an indictment must be found by 
a majority of the grand jury, and as it must also be found by 
twelve grand jurors at least, grand juries are generally composed 
of twenty-three persons, so that the smallest possible majority 
may consist of twelve. They may, however, consist of any 

y number not less than twelve. 
The indictment is the foundation of the record in all 
criminal cases, and is indeed the only document connected 
with the trial which in all cases is in writing. It is in the 
form of a statement upon oath by the grand jury that the 
prisoner committed the offence with which he is charged. This 
assertion in former times went a long way (as I have already 
shown), to his conviction. At present, however, it is a mere 
accusation. It is now a far simpler document than it would have 
been in early times, or even early in the present reign. I can- 
not say when it was first enacted that indictments should be in 
writing. ^ It is said by Reeve' that a statute to that effect 



1 Eist. of Eng. Law, i. 424. The only act of the sort I can find is 13 Edw. 1, 
c. 13, which applies only to indictments taken by sheriffs in their toums. See, 
too, 1 Edw. 3, s. 2, c. 17. 



HISTORY OF INDICTMENTS. 275 

was passed under Edward I., but however this may be, I Chap. IX. 
think it is clear that the form of indictments, and the 
extreme strictness with which rules respecting them have 
been observed, were derived principally from the laws 
relating to appeals. As I have already stated, the utmost 
strictness and particularity was required of the appellor 
in the statement of his case, which was enrolled before 
the coroners, and variances between the allegations so 
made and those made before the justices were fatal. 
Elaborate provisions are contained in Bracton for com- 
paring the two sets of statements together, and for 
settling the relative authority of the rolls kept by different 
coroners if they varied, and of the rolls kept by the 
sheriffs. 

The history of indictments is a branch of the history 
of the law of special pleading. It would extend this work 
beyond all limits if I were to attempt to enter upon this 
subject at length. It is enough to say that in all common 
cases the pleadings in a criminal trial have always consisted, 
and still consist, of an indictment engrossed on parch- 
ment, and a plea given by the accused person orally in open 
court, of guilty or not guilty. The requisites of an indict- • 
ment at common law differed hardly at all from the earliest 
times till our own, indeed the only statutes which much 
affected them up to the year 1827 were what was called the 
Statute of AdditioTia H Hpti 5 r fi^ whir .k>f>»)iwUM^-^vK>t4? 
t he Pames of th e defendants should be followed by a state- 
ryftnt qf '*tneir es^f c or degree or mystery, and of tlic towns, 
"JlOiT"^^^^ ^Ti Plflfif "^"^ counties, in which tlnv \\cn',"and 
the 4 Geo. 2, c. 26, which enacted that all indictments should 
be in English. Subject to these alterations an indictment 
under George IV. was what an indictment under Edward 
in., and probably under Edward I., had been. Its requi- 
sites were, and subject to modem amendments, still are, 
as follows : — 

It consists of a commencement, a statement, and a con- 
clusion. The conclusion by recent legislation has ceased 
to be of importance, but the rules as to the venue and 
tlie statement are still important, and each is curious. 

T 2 



276 VENUE. 

Chap. IX. The Yenue. — The venue is in this form — 

Hampshire ) The jurors for our 

to wit ; J Lady the Queen 

or, upon their oaths, 

Central Criminal ) present, &c. 



Court to wit ; 

or. 

County of the Town 

of' Nottingham 



to wit 



} 



The object of this beginning is to show that the court has 
jurisdiction over the offence to be tried, and the venue accord- 
ingly refers to the local area over which, by the commission 
under which it sits, the court has jurisdiction. Thus in 
the three examples given, the first shows that the court is 
sitting under commissions of Oyer and Terminer and gaol 
delivery for one of the counties. The second, that the court is 
sitting for the district over which the Central Criminal Court 
has jurisdiction, extending over all Middlesex, the City of 
London, and parts of several neighbouring counties. The 
last, that the court is sitting under commissions of Oyer 
and Terminer and gaol delivery, for the county of the town of 
Nottingham. The jurisdiction of the court, and the knowledge 
of the grand jury by which it is informed are supposed to be 
co-extensive. The Queen sends her commissioners to learn 
what crimes have been committed in a given county. The 
grand jury from their local knowledge give the required 
information. It is true that the High Court of Justice and 
the courts by which peers are tried for felony have jurisdic- 
tion wherever the crime may have been committed, but their 
jurisdiction arises only upon an indictment found by a grand 
jury for the body of the county, or upon an impeachment in 
the nature of an indictment found by the House of Commons. 
The Queen's Bench Division of the High Court of Justice 
might sit in any county in England, or try at Westminster or 
elsewhere offences brought before it by certiorari from any such 
county, but in all cases it would have to try indictments found by 
a grand jury of the county in which the crime was committed. ^ 
In short, the theory of trial by the neighbourhood {vicinctum. — -'*' 
visne — venue) has been inflexibly adhered to, though it has 



HISTORY OF VENUE. 277 

been subjected to many exceptions. It was originally carried Chvp. IX. 
out so far, that at common law, and down to the passing in 
1548 of the statute 2 & 3 Edw. 6, c. 24, if a man was 
wounded in one county and died in another, the person who 
gave the wound was indictable in neither, "for that," to 
quote the preamble of the statute referred to, " by the custom 
*' of this realm, the jurors of the county where such party 
'' died of such stroke, can take no knowledge of the said 
" stroke, being in a foreign county," . . . . " ne the jurors 
'' of the county where the stroke was given cannot take 
" knowledge of the death in another county." The preamble 
goes on to say, " And also it is a common practice amongst 
" ^ errant thieves and robbers in the realm, that after they 
" have robbed or slain in one county, they will convey their 
" spoil or part thereof so robbed and stolen, unto some of 
" their adherents into some other county," . . . . " who 
" knowingly receiveth the same, in which case, although the 
" principal felon be after attainted in one county, the acces- 
" scry escapeth by reason he was accessory in another county, 
" and that the jurors of the said other county by any law 
" yet made can take no knowledge of the principal attainder 
*' in the first county." It is difficult to understand how such 
defects as these should have been permitted to continue as 
long as they did, but there were many others, which, if 
rather less obvious, were quite as discreditable. Thus, 
for instance, there are crimes as to which it is generally im- 
possible to prove where they were committed. The county in 
which a man committed a forgery would usually be unknown. 
It would generally be extremely difficult to say where a 
conspiracy was formed, the existence of which was inferred 
from acts done in different places, and so of many other cases. 
^ The result is that in a large number of statutes by which 
offences are defined, special provisions are made as to the place 
in which the venue may be laid. The only general interest at- 
taching to these exceptions is that they prove that the general 
principle which requires so many exceptions must be wrong. 
Other inconveniences of the general doctrine arc shown 

^ This 8I10W8 thfi meaning of the expression an "arrant rogue," — a rogue 
who wandered about the country, a rogue, so to speak, in eyre. 
'■^ Dig. Crim. Proc. art. 244, and cli. ix. and x. 



278 INCONVENIENCES OF DOCTRINE OF VENUE. 

Chap. IX. by another class of exceptions, arising not from the nature of^ 
particular crimes, but from uncertainty as to the place where 
they are committed ; such are crimes committed on a journey 
or on the boundary of a county. These cases are provided for 
yy/^ by 7 Geo. 4, c. 64, ss. 12 and 13, under which a person charged 
with a crime committed during a journey in any conveyance 
by land or water, may be indicted in any county over which the 
conveyance passed during the journey, and a person charged 
with a crime committed within 500 yards of the boundary 
between two counties, may be indicted and tried in either. 

In cases of theft the law of venue was found so inconvenient 
that a doctrine was invented before the time of ^ Hale, that 
if a man steals property and carries it from place to place 
he goes on stealing it as long as he keeps possession of it, 
and so may be indicted in any county into which he con- 
veys it. This doctrine has been made the subject of several 
subordinate refinements, which it is unnecessary to mention. 

A rule which requires eighteen statutory exceptions, and 
such an evasion as the one last mentioned in the case of theft 
— the commonest of all offences — is obviously indefensible. It 
is obvious that all courts otherwise competent to try an offence 
should be competent to try it irrespectively of the place where 
it was committed, the place of trial being determined by 
the convenience of the court, the witnesses, and the person 
accused. Of course, as a general rule, the county where the 
offence was committed would be the most convenient place 
for the purpose.^ 

Before leaving this matter I may refer to a few statutes 

1 Hale, P. C. 507. 2 j)ig^ (7,^^,^^ p^oc. art. 82. 

* In the Draft Code for 1879 provision was made for obtaining this object by 
section 504. " Jurisdiction of Courts. — Every court competent to try offences 
" triable in England or Ireland, as the case may be, shall be competent to try 
*' all such offences wherever committed, if the accused is found or apprehended 
** or is in custody within the jurisdiction of such court, or if he has been com- 
" mitted for trial to such court or ordered to be tried before such court, or 
*' before any other court the jurisdiction of which has by lawful authority 
** been transferred to such first-mentioned court under any act for the time 
" being in force : Provided that nothing in this act shall authorise any court 
*' in England to try any person for any offence committed entirely in Ireland, 
*' or any court in Ireland to try any person for any offence committed entirely 
" in England, or any court either in England or Ireland to try any person for 
" any offence committed entirely in Scotland. No proceeding before any 
" court shall be held invalid only because it took place in any other district 
" than the one in which the court ought to have sat, unless it is made to 
" annear affirmatively that the accused was actually prejudiced thereby.'^ 



STATUTES AS TO VENUE. 279 

by which the rules as to the local jurisdiction of the ordinary Chap. IX. 
courts are varied. 

^ Many cities and towns are counties in themselves. Most, 
but not all, of these are also county towns in which the 
assizes are held for the county in which they are situated. 
For instance, \^ork is a county in itself, and is also the county 
town for the East and North Ridings of Yorkshire. Hull is 
a county in itself, but no assizes are now or have for a great 
length of time been held there. 

With regard to all cities and towns which are counties in 
themselves, it is ^ enacted (1) that indictments for offences 
committed in them may be preferred before the grand jury 
of the next adjoining county, and (2) that indictments found 
by the grand juries of such counties of towns or cities, and 
inquisitions found by the coroners there, may be ordered by 
the court having jurisdiction to be tried in the next adjacent 
county. 

Hull being adjacent to both Yorkshire and Lincolnshire, and 
Newcastle to both Northumberland and Durham, it is directed 
that for this purpose Hull shall be deemed to be adjacent 
to Yorkshire, and Newcastle-on-Tyne to Northumberland. 

This act does not apply to London, 

It is further ^ enacted, that when a person is committed 
for any offence not triable at Quarter Sessions to the gaol of 
any county of a city or town corporate for which no separate 
commission has been issued since * 1846, the trial should be 

^ The following is, I think, a complete list. The towns whose names are 
printed in ordinary type are also assize towns for the counties in which they are 
situated. The towns whose names are italicised are not. Of these Bristol 
is the only one for which separate commissions of Oyer and Terminer and gaol 
delivery are now issued. Bristol, Canterhury, Chester, CovrMtry, Exeter, 
Gloucester, Lincoln, LitchJieLd, Norwich, Woniester, York, Caermarthen, 
Haverfordwest, Hull, Newcastle-on-Tyne, Nottingham, Poole, SmifJio/nipton. 
B<ifore the act referred to in the text was passed, the separate jurisdictions of 
counties of cities was a great abuse, as commissions of gaol delivijry for such 
counties were issued only at long intervals. This is noticiul by Howard in his 
Stale of tJie Prisons in England and Walen (fourth edition, 1792, p. 15). He savs 
that "at Hull tliev used to have the assize but once in seven years. Peacock, 
"a murder(!r, was in prison there near three years ; before his trial theprin(dpal 
"witness died, and tne murderer was acc^uitted. They now have it once in 
" three yciars." 

'^ 38 Geo. .3, c, 52, ss. 2, 3, 9 ; nnd see 51 Goo. 3, c. 100, s. 1, and 6 & 6 
Will. 4, c. 76, superseded by 46 k 46 Vic. c. 60, s. 188. 

3 14 & 15 Vic. c. 55, 8. 19. 

* Five years next before the passing of this act, i.e. Aug. 1, 1861. 



28o 



PALMERS ACT. 



Chap. IX at the next adjoining county, as defined in the Municipal 
Corporations Act, 1835 (5 & 6 Will. 4, c. 76), Schedule C. 

The Queen's Bench Division of the High Court of Judica- 
ture is said to have power at common law to order a change 
of venue if a fair trial cannot be had in the county where 
a crime is committed, but I do not tKink this power has ever 
been exercised in fact. On the occasion of the trial of the 
notorious William Palmer for poisoning, an act (19 Vic. c. 16, 
1856) was passed enabling the Court of Queen's Bench to 
make an order for the trial of any indictment at the Central 
Criminal Court. The act is very elaborate. It is seldom put 
in force. 

In 1862 a soldier shot his officer, I think at Aldershot, and 
various persons having contended that the minds of soldiers 
would be greatly impressed if the punishment of such offences 
were a little more speedy, an act (25 & 26 Vic. c. 65) 
was passed, drawn on the model of the act last mentioned. 
It provides that if any person subject to the Mutiny Act 
commits murder or manslaughter on any other such person 
he may be ordered to be tried at the next session of the 
Central Criminal Court. 

This is a singular illustration of the capricious casual 
character of English legislation. I never heard of the 
act being put in force. It is elaborate enough to have set 
the whole law of venue on a rational footing five times over. 

1 The Statement. — The statement sets out all the ingre- 
dients, of the offence with which the defendant is charged, 
namely, the facts, circumstances, and intent which constitute 
it. These matters must be set forth with certainty, and 
without repugnancy, and the defendant must be directly and 
positively charged with having committed the offence. -The 
name of the defendant must be correctly set forth, also his 
» rank in life and his occupation (by the Statute of Additions, 

-^ but it does not matter whether they are or not). Moreover, 

t the name of the party injured, and if the offence relates to 

property, the name of the owner of the property must be 
stated correctly, or if he is unknown the fact that he is 

^ See Dig. Crim. Proc. eh. xxx. arts. 242-253. The chapter referred to is 
somewhat differently arranged from tlie statement in the text. I have followed 
in the text the usual arrangement. 



I 



STATEMENT OF OFFENCES IN INDICTMENTS. 28 1 

unknown must be stated. At common law, every material Chap. IX. 
fact, that is every fact which formed an ingredient in 
the offence, had to be alleged to be done at a particular 
place and time. This was called the '' special venue," and 
was usually effected by introducing the words " then and 
" there " after every averment subsequent to the first, and in 
very early times it was necessary that the special venue should 
show that the act to which it applied was done in the town, 
hamlet, or parish, manor, castle, forest, or other place whence 
the jurors were to come who were to try the case — a singular 
illustration of the extent to which the jurors were originally 
regarded as witnesses. 

All the facts and the intent constituting the offence were 
also to be stated with certainty, — that is to say, with a 
degree of detail and specification regulated by circumstances. 
^ Coke explains what is meant by certainty. There are 
three degrees of certainty : — Certainty to a certain in- 
tent in every particular. Where this is required the 
court will presume the negative of everything which the 
pleader has not expressly affirmed, and the affirmative of every- 
thing which he has not expressly negatived. In other words 
the pleader must expressly exclude every conclusion against 
him. The lowest degree of certainty is certainty to a common 
intent, and where this is required the court will presume in 
favour of the pleader every proposition which by reasonable 
intendment (i.e. according to the common use of language) 
is impliedly included in the pleading, though not expressed. 

Between these there is a third degree of certainty, called 
** certainty to a certain intent in general," which cannot be 
otherwise described than by saying that it does not require 
quite so much explicit statement as certainty to a certain 
intent in every particular, and that it requires more than 
certainty to a common intent. It is this middling kind of 
certainty tnat is required in indictments. It is said that, 
where it is required, everything which the pleader should 
have stated, and which is not either expressly alleged or by 

1 Co. Litt. 803«, and see Long's case, 6 Rep. 121a. The explanation or 
expansion of Coke's language is given in Archbold, 67. I>ig. Crim. Proc. 
arts. 242, 243., 



282 



RULES OF PLEADING — FORMAL CONCLUSION. 



Chap. IX. 



necessary implication included in what is alleged, must be 
presumed against him. Words, however, are in this case 
construed rather less artificially and technically than in the 
case of certainty to a certain intent in every particular. 

As an illustration, written instruments had to be set out 
verbatim, and chattels had to be described correctly. If a 
man were charged with stealing a sheep, that would be held 
to mean a living sheep and not the dead body of a sheep. 
A boot must not be called a shoe, and money originally 
had to be described as so many pieces of the current gold or 
silver or copper coin of the realm called sovereigns, shillings, 
or pence, as the case might be. 

There are besides certain technical words which must be 
used in charging certain crimes. The words *' murder," 
** ravish," "steal, take, and carry away," or, in the case of 
cattle, '' drive or lead away," and "burglariously" cannot be 
replaced by any equivalents. 

There are some other rules as to the drawing of indictments, 
of which I need only mention one. Indictments must not be 
double. No one count ouo^ht to charge more than one offence. 

The Conclusion. — Formerly the rule was that the in- 
dictment must conclude, if it was for an offence at common 
law, with the words "against the peace of our Lady the 
" Queen," to which are always added, in fact, though they 
are not essential, " her crown and her dignity." If the 
offence was by statute the proper ending was "against the 
form of the statute (or statutes) in that case made or provided." 
When indictments were in Latin the form used always was 
" contra formam statut'," and it was held that " statut' " 
would do equally well whether it ^ ought to have been 
" statuti " or " statutoram." After the 4 Geo. 2, c. 26 (1730), 
which required indictments to be in English, this convenient 
ambiguity became unlawful, and it was necessary to say either 
" the statute " or " the statutes." At last it was enacted 
(14 & 15 Vic. c. 100, s. 24) that no objection should be 



^ This act came into force in 1733. It was repealed by 42 & 43 Vic. c. 59,. 
schedule 1, but it has not been contended that the common law has revived, 
though none of the words in s. 4 (4) seems to meet the case quite plainly. 
I suppose, however, that the rule that indictments must be in Latin would in 
case of need be held to be an " usage," " practice," or '* procedure." 



VARIANCES. 283 

taken on the OTOund that it ought to have been either Chap. IX. 

'' statute " instead of " statutes," or " statutes " instead of 

''statute." Indeed it is now unnecessary to have "a proper 

" and formal conclusion" at all. 

These were, and to some extent still are, the leading 

requisites as to the contents of an indictment. In order to 

appreciate the matter fully it must be remembered that, 

subject to some ^ few exceptions, it is necessary to prove the 

averments of an indictment as they. are laid, so that if a man is 

indicted for the murder of John Smith, and is proved to have 

murdered James Smith, this is a fatal "variance," and he is 

entitled to be acquitted, unless the defect is amended, though 

he might afterwards be indicted again for the murder of James. 

The effect of the two rules that an indictment must contain 

certain averments, and that each averment must be proved as 

laid, was, before late alterations, to introduce into the adminis- 

tration of justice an element of arbitrary uncertainty not 

unlike that which the Roman augurs introduced into Roman 

public affairs by their supposed knowledge of the omens. 

To give one instance where a thousand might be given. ^ A 

man who had from mere wantonness stabbed a lady whom 

he met in St. James' Street, was indicted under a statute of 

George I. (6 Geo. 1, c. 23, s. 11), for "maliciously assaulting 

her with intent to cut her clothes," which was then a capital 

felony. The indictment stated that on the 18th January, 1790, 

at, &c., Williams assaulted Ann Porter with intent to cut her 

clothes, and that Williams on the said 18th January, 1790, 

at, &c., did \then and there was here omitted] cut the clothes 

of the said Ann Porter, to wit, a silk gown and a pair of stays, 

and a silk petticoat and a linen petticoat, and a linen shift. 

It was objected that it did not appear from this that the assault 

^ It was never necessary to prove the special venue as laid, but it was enough 
if the fact stated was sliown to have liappened within the jurisdiction of the 
court. For iiistajioc, in an indictment against an Indian ollicial ft)r receiving 

f)re8ent8, a fact which happened at, say, Madras, had to he alleged to have 
lappened to wit, at Bow, in the County of Middlesex, but inasmuch 
as the court had by statute jurisdiction over acts done at Madras it was 
sufficient to prove that the odence really did happen at Madras and not at How. 
2 Williams's case, 1 Leach, 529 (a.d. 1790), The pictures([ue part of the 
story is to found in the Nev;<iate (Jakivlni\ iii. 161, which contains an ac'count 
of " Kcnwick Williams, commonly called the Monster." His pocMiliiir title 
to infamy was his taste for stabbing in various places women whom ho did not 
know. 



284 FLAWS IN INDICTMENTS. 



Chap. IX. and the cutting the clothes were all one act, and that as far 
as the indictment went the assault might have been in the 
morning and the cutting of the clothes in the evening, which 
flaw would have been avoided by inserting the words " then 
and there," between "did" and "cut," and this objection was 
held to be fatal. 

I do not think that anything has tended more strongly 
to bring the law into discredit than the importance attached 
to such technicalities as these. As far as they went their 
tendency was to make the administration of justice a solemn 
farce. Such scandals do not seem, however, to have been 
unpopular. Indeed, I have some doubt whether they were not 
popular, as they did mitigate, though in an irrational, capricious 
manner, the excessive severity of the old criminal law. 

There was a strange alternation in the provisions of 
the law upon this subject, by which irrational advantages 
were given alternately to the Crown and to the prisoner. 
In favour of the prisoner it was provided that the most 
trumpery failure to fulfil the requirements of an irrational 
system should be sufficient to secure him practical impunity 
for his crime. ^ On the other hand, in favour of the Crown, it 
was provided that the prisoner should not be entitled to a copy 
jof the indictment in cases of felony, but only to have it read 
V ; over to him slowly, when he was put up to plead, a rule which 
made it exceedingly difficult for him to take advantage of any 
; defect. But then again, any person might point out such a flaw, 
»' and it was in a sort of way the duty of the judge as counsel 
for the prisoner to do so. On the other hand, some flaws were, 
and others were not, waived, by pleading to the indictment. 

In short, it is scarcely a parody to say, that from the earliest 
times to our own days, the law relating to indictments was 
much as if some small proportion of the prisoners convicted 
had been allowed to toss up for their liberty. 

In practice this system is to a great extent a thing of the 
past. Legally it is still in full force except so far as it has 
been relaxed by a few specific sections of acts of parliament. 

^ I say practical impunity because the chance of his being indicted a second 
time and of the prosecution being able to prove that the flaw in the first in- 
dictment was such that he had never been legally in peril, and so could not 
plead autrefois acquit, was not great. 






ACTS OF 1828 AND 1851. 285 

The following are the practically important sections : — Citap. IX 

By 7 Geo. 4, c. 64 (1826), ss. 14—18 inclusive, it is 

enacted that the property of a number of articles (as to 
which it is difficult to say to whom they belong), may in any 
indictment be laid in particular persons, e.g. the property in 
things provided for the repair of a county bridge, may by 
s. 15 be laid in the inhabitants of the county, and none of 
them need be named. These provisions have saved a great 
deal of petty trouble. 

By s. 19 misnomers and wrong additions, or the want 
of an addition, are rendered practically unimportant. 

By 9 Geo. 4, c. 15 (1828), variances between allegations 
in indictments as to the contents of documents written or 
printed, and the documents proved on the trial, may be 
amended in cases of misdemeanour, and are therefore 
rendered unimportant. This is extended to felonies by 
11 & 12 Vic. c. 46, s. 4 (1848). The acts applied only to 
the superior courts, and their provisions were extended to 
the Courts of Quarter Sessions in 1849, by 12 & 13 Vic. 
c. 45, s. 10. 

In 1851 an act was passed which went further in the way 
of removing technicalities, but it did so by an enumeration 
of them, so technical and minute, that no one could pos- 
sibly understand it who had not first acquainted himself with all 
the technicalities which it was meant to abolish. This is 14 & 
15 Vic. c. 100. Section 1 enables the court to amend many 
specified variances between the indictment and the evidence, 
and especially all variances in the descriptions of either 
persons or things, and in the ownership of property. The 
effect of this is, that if a man is indicted for stealing a sheep 
the property of James Smith, and is proved to have stolen a 
lamb the property of John Smith, the court may amend the 
indictment if it thinks it not material, i.e. if it thinks that 
the prisoner has not been misled. This has practically 
relaxed very greatly the rule about "certainty to a certain 
" intent in general," already referred to. 

By ss. 5 and 18 it was provided that documents might be 
described by their common names without setting out copies, 
and that bank-notes might be described as money, and it was 



286 



RESULT OF AMENDING ACTS. 



Chap. IX. provided that it should be no variance to prove a theft, &c., of 

coin in an indictment for stealing, &c., a bank-note. Bys. 23 

special venues were abolished. By s. 24 it was provided that 

indictments were not to be held bad for the want of any one 

. ,^ of fifteen specified formal phrases such as *' as appears by the 

l[ij record," "with force and arms," ''against the peace,'-' &c. 

','<' Some of these are noticeable as matter of curiosity. For 

instance, the want of " the averment of any matter urmeces- 
*' sary to be proved," was in effect declared to be no longer a 
defect. This did away with the statements that the crime 
was committed by a person " not having the fear of God 
''before his eyes," and ''atthe_speciaL,instigaJion <>^ 
" devil." By s. 25 it was provided that every objection in 
respect of any formal defect patent on the face of the indict- 
ment must be taken before plea, and the court was empowered 
to amend any such defect. The result of this was to make 
such defects unimportant, as they can now be noticed only 
under such circumstances that they can be at once amended. 
^ The effect of these complicated and narrowly guarded 
amendments was to leave the greater part of the law relating 
to indictments in a blurred half-defaced condition, like a slate 
the greater part of the writing on which has been half rubbed 
out. They added greatly in one sense to the intricacy of the 
law, for nothing can be more intricate than a system of 
unwritten rules qualified by numerous written exceptions. 
For instance, it was formerly enough to know what was 
meant by a special venue. Now, if the law is to be fully 
understood, you must both know what a special venue was, 
and what effect was produced by its abolition. It was once 
enough to know what is meant by certainty to a certain 
intent in general, and to know that it is required in all the 
averments in an indictment, but to this there ought now to 
be added a knowledge of the many exceptions to that rule 
introduced by statute. Practically no one takes the trouble 
to learn the law so elaborately. A general impression has 
been produced that quibbles about indictments have come to 

^ Dig. Crim. Proc. ch. xxx. gives as accurate a statement of this as I could 
make. See especially tlie rule as to certainty, art. 242, the exceptions, art. 
243. The rules and exceptions as to descriptions in art, 246, as to ownership, 
art. 249, as to powers to amend, art. 250. 



INDICTMENTS FOR MURDER. 



287 



111/ 



an end. It has ceased to be the fashion to make them, and if Chap. IX 
they are made they do not succeed. This is practically 
•convenient, but, on the other hand, it is a very slovenly state 
of things. 

Besides the provisions to which I have referred, a certain 
number of special provisions have been made as to indict- 
ments for particular offences. Thus, it was formerly necessary 
upon an indictment for murder, to set out in minute detail 
all the circumstances of the crime, and it was usual to vary 
the details in different counts, so as to meet possible variations 
in the proof Thus, in one count it would be stated that A 
made an assault upon B with a knife which A held in his 
right hand, and gave B one mortal wound in the breast, of 
such a length and depth, of which B languished for so many 
days, " and languishing did live," and on such a day did die. 
Another count would vary this by alleging that the knife was 
held in the left hand. A third, that it was held in the hand 
without saying either right or left, and so on. These 
variations extended the indictment to an enormous length, 
and made it ^grotesque beyond belief By 24 & 25 Vic. 
c. 100, s. 6, re-enacting an earlier act, it was enacted that it 
should be sufficient in indictments for murder to charge 
generally that the defendant did feloniously, wilfully, and of 
his malice aforethought, kill and murder the deceased. 

So in indictments for forgery, it used to be necessary not 
only to allege an intent to defraud, but to specify the person 
intended to be defrauded. This was often a matter of great 
difficulty, and numerous counts were introduced, each of 
which specified a diffisrent person as having been intended 
to be defrauded. Now by 24 & 25 Vic. c. 98, s. 44, it is 
enough to allege in general terms an intent to defraud. It 
would be foreign to my purpose, however, to enumerate every 
statutory provision of this sort. It is enough to say, that 

' I liave been infonned that in the case of Daniel Good, who murdered a 
maidservant at lloeliamT)ton and hurnt lier body aft(^rwards so as to leave the 
precise manner in which the crime was committed uncertain, the indictment 
containcul nearly seventy counts, tlie last aveiTin<,' (which was no ilouht. truiO 
that the woman was murdered by means to the said jurors uidcnown. 1 1 nnist 
be remembered in riiference to this that tlie chirks of assi/c and nihor olliccrs 
who dr«!W indictments were paid by foes, and that each count in an indictment y^^ 

was charged for sei)arately. ~ 



288 



INDICTMENTS FOR PERJURY. 



Chap. IX. though a good many convenient exceptions to the old rigour 
of the law have been made, enough of it still remains to 
make criminal pleading intricate and technical to the last 
degree. I will give a few illustrations of this. 

The rule of pleading which requires all the elements of a 
crime to be set out in an indictment, still in full force, in 
cases in which no statutory exception applies, causes extreme 
intricacy and elaboration in indictments. For instance, an 
indictment for perjury must set forth the following matters : 
First, the jurisdiction of a competent tribunal. Secondly, the 
taking by the defendant of an oath duly administered. 
Thirdly, that the truth of the matter deposed to became 
and was a question material to the decision of the matter 
before the court. Fourthly, that the defendant swore such 
and such matters relating to it (these averments are called 
assignments of perjury). Fifthly, that each matter assigned 
as perjury is false in fact. To give a copy of such an indict- 
ment would be tedious, but the following is a much abridged 
skeleton of one. 

The jurors for our Lady the Queen present that at Q- to put 
it shortly) the assizes held on the 20th July, 1880, at York, 
before such a judge, B was indicted for the murder of C, 
which indictment came on to be tried before a jury duly 
sworn, and upon the trial thereof A '' took his corporal oath 
" on the Holy Gospel of God," that the evidence which he 
should give should be the truth, the whole truth, and 
nothing but the truth, and upon the trial it became a 
material question whether at mid-day, on the 1st March, 
1880, A saw B at Westminster Hall, in the City of 
"Westminster, and A " falsely, corruptly, knowingly, wilfully, 
" and maliciously" swore that he did see B at mid-day, on 
the 1st March, 1880, at Westminster Hall, in the City of 
Westminster, whereas in truth and in fact, A did not see B 
at mid-day, or at any other hour on the said first day of 
March, 1880, at Westminster Hall, aforesaid, " and so the 
"jurors aforesaid, upon their oath aforesaid, say that the said 
" A, on the said 20th July, 1880, before the said Sir E. F., 

^ A number of particulars as to the commission under which the court sits 
would in practice be set forth. 



INDICTMENT FOR FALSE PRETENCES. 289 

" SO being such judge as aforesaid, by his own act and consent, Chap. IX. 
" and of his own most wicked and corrupt mind, in manner 
" and form aforesaid, falsely, wickedly, wilfully, and corruptly, 
" did commit wilful and corrupt perjury against the peace of 
" our Lady the Queen, her crown, and her dignity." 

This form tells one story three times over, namely, once in 
averring materiality, again in assigning perjury, and for a 
third time, in negativing the truth of the assignments of 
perjury. It adds nothing to what any one would learn from 
the following statement : — " The jurors for our Lady the 
" Queen present, that at the assizes held at York, before such a 
" judge, on such a day, B was indicted for the murder of C, 
" and that A upon the trial of that indictment committed 
"'' perjury by swearing that he saw B, at mid-day, on the 
" 1st March, 1880, at Westminster Hall, in the City of West- 
" minster, which statement was material to the indictment 
" under trial, and was false to the knowledge of A." 

An indictment for false pretences is also an intricate 
matter, as the nature of the pretence must be set out and 
its falsehood averred in such a way as to repeat the story 
twice : thus, " A did falsely pretend to B that A had been 
" sent to B by C for £5 which C wanted to borrow of B, by 
" means of which said false pretence A did obtain from B 
" £5, whereas in truth and in fact A was not sent to B by C 
" for £5 which C wanted to borrow of B or for any other sum 
" of money whatever." Moreover, the rule that averments 
must be proved as laid makes it necessary to vary the 
description of the false pretence in a variety of ways, so 
that one at least may correspond with the evidence. The 
operation of these rules frequently swells indictments for 
obtaining goods by false pretences to a length at once 
inconvenient and absurd. 

Perjury and false pretences afford perhaps the commonest 
illustrations of the bad effects produced by the rules of 
special pleading still in force as regards indictments, but 
tliere is another rule which has never been made the subject 
of any statutory qualification, and which is the cause of much 
greater prolixity, obscurity, and expense. This is the rule 
that indictments must not be "double." That is that each 

VOL. T. " IT ' ""^ 



290 INDICTMENTS NOT TO BE DOUBLE. 



^ 



Chap. IX. count must charge one offence and no more. A policeman 
fries to apprehend a burglar who fires a pistol in his face and 
gives him a serious wound in the mouth, knocking out a 
front tooth. This act is an offence under 24 & 25 Vic. c, 
100, s. 18, and might, though in practice it would not, be 
made the subject of the following counts : — 

(1) Wounding with intent to maim. 

(2) Wounding with intent to disfigure. 

(3) Wounding with intent to disable. 

(4) Wounding with intent to do some grievous bodily 
harm other than those above specified. 

(5) Wounding with intent to resist lawful apprehension. 

(6) Wounding with intent to prevent lawful apprehension. 

(7) Wounding with intent to resist lawful detainer. 

(8) Wounding with intent to prevent lawful detainer. 

(9 — 16 inclusive) Causing grievous bodily harm with each 
of the eight intents before stated. 

(17—24 inclusive) Shooting at the policeman with each of 
the eight intents before mentioned. 

Another count might be added under s. 14 for shooting 
with intent to murder, and another under s. 15 for attempting 
to murder otherwise than in the five ways specified in s. 14. 
These would make in all twenty-six different counts for a 
single act. 

This is an illustration of the principal cause of the enor- 
mous length and intricacy of indictments. Indictments for 
fraudulent misdemeanours sometimes consist of more than a 
hundred counts, differing from each other almost imperceptibly 
by minute shades of meaning and expression. No one ever 
reads them except the clerk who compares the draft with 
the engrossed copy. The draftsman draws one count as a 
pattern of the class, and directs the counts to be varied by a 
short note such as I have given. The judge never looks at 
the indictment unless his attention is directed to some 
particular point. The counsel look at abstracts like the one 
just given, which ^ show the sense of the indictment. No 

^ I have heard of a very eminent special pleader who, when he had drawn a 
specially long indictment, used to " shuffle his counts," so that his opponent 
might find it, humanly speaking, impossible to understand what the in- 
dictment did and did not contain. The short illustration I have given will 



JOINDER OF COUNTS. 29 1 

undefended prisoner would get the least information from it, Chap. ix. 
and the document is of infinitely less use as a record of the ' 

transaction than a short and simple one would be. 

To complete the specification of the causes why indict- 
ments are still intricate and techni<5al documents, notwith- 
standing such efforts as have been made at their improve- 
ment, I must mention the ^rule as to what is called the 
joinder of counts, that is as to including more charges than 
one in the same indictment. The rule is that you may 
theoretically join in the same indictment any number of 
counts for felony, and any number of counts for misde- 
meanour. But a count for a felony can in no case be joined 
with a count for a misdemeanour. One reason of this 
rule was that when felonies were in almost every case 
punishable by death it w.ould have been absurd to join a 
charge which if established would involve capital punish- 
ment with a charge which would at most involve fine 
and imprisonment. Another reason is that the incidents of 
trials for felony and misdemeanour differ. It would be 
obviously inconvenient, if not impracticable, to indict a man 
for two offences for one of which he might challenge twenty 
jurors peremptorily, whilst he had no right to challenge on 
the other. There is, however, a further distinction. The 
right to charge any number of felonies in the same indict- 
ment is subject to the ^ doctrine of election — a doctrine intro- 
duced simply by the practice of the courts. This doctrine 
is that if it should appear, either upon the face of an in- ( 
dictment or when the evidence is given, that the different { 
counts in an indictment for felonj^^ relate to more transac- \ 
tions than one, and are not different ways of describing the \ 
same transaction, the court will compel the prosecutor to \ 
confine his evidence to one of the transactions. No such 
rule applies to misdemeanours. The result of this is that 
counts charging any number of misdemeanours each charged 
in any number of different ways may be included in a single 

show how confiming this wouhl ])C If, for instance, counts clmrginc wound- 
itjg with various intents, were mixed up just us it haj)i)en(!d witli counts 
charging causing grievous bodily harm and counts cluirgiiig shooting, the 
patience of most men would hreak down before tliey had aHccrtaiiied jJreciHcly 
what the indictment cliargjid. 

^ Dig. Crim. Proc. arts. 236-241. » lb. art. 240. 

u 2 



292 Proposed ALTEHAfioNs in law. 

Cifft-p. IX. indictment, ^d this is the cause of the enori*ous prolixity 
of indictments for mercantile frauds and of the trials which 
ensue upon them. I have known cases in which indictments 
on the Fraudulent Debtors' Act have charged each of ten or 
twelve acts in each of ten or twelve ways. 

The defects of this system need no remark, and as to the 
manner in which they might be removed, it will be enough 
to refer: to the Draft Code prepared in 1878-9 by the Criminal 
Code Commissioners. An account of this and of some 
other proposals of theirs for the simplification of criminal 
procedure will be found ^ below. 
/ An information differs from an indictment, so far as the 
1 1 rules of pleading are concerned, only in the circumstance that 
it is a formal statement made by the Attorney-General that 
the defendant is guilty of a misdemeanour instead of being 
a formal statement upon oath by a grand jury that the 
person accused is guilty of felony or misdemeanour. 

^ If a person is indicted when he is not in custody a cer- 
tificate of the indictment may be procured by the prosecutor 
from the officer of the court before which the indictment is 
found, and upon the production of the certificate to a magis- 
trate a warrant for the apprehension of the person accused 
must be issued, and upon his identification the person accused 
must be committed for trial. If he cannot be apprehended 
he may (in theory) be ^ outlawed, which in cases of treason 
and felony has the effect of a conviction. Outlawry, how- 
ever, has gone completely out of use. The principal import- 
ance of it was that it involved, as indeed ^it still involves, 
forfeiture, but forfeitures have not in practice been exacted 
(except in very exceptional cases) in modern times, and for 
other purposes outlawry is useless. The effect of extradition 
treaties is that a criminal can be arrested for most of the 
graver offences in almost any part of the world, and if a man 
is driven from his native country and cannot be found 
elsewhere there is no use in obtaining a formal conviction 
against him. 

Notwithstanding all the pedantry and technicalities by 

^ Pp. t)ll-51S. 2 jQ^g c'rm. Proc. arts. 193-194. 

3 lb. art. 233. ^ 33 & 34 Vic. c. 23, s. 1. 



MERIT OF OLD SYSTEM OF INDICTMENTS. 293 

which the law relating to indictments was disfigured, it ought Chap. IX. 
to be said that they had at least one valuable feature. The 
rule that the indictment must set out all the elements of the 
offence charged, was some sort of security against the arbi- 
trary multiplication of offences and extension of the criminal 
law by judicial legislation in times when there were no 
definitions of crimes established by statute, or indeed by any 
generally recognised authority. If, for instance, it had been 
lawful to indict a man in general terms, say for high treason, 
and if the judges had had to say what constituted high treason, 
the law might have been stretched to almost any extent. The 
necessity for setting forth that the prisoner imagined the 
death of the king, and manifested such imagination by such and 
such overt acts, was a considerable security against such an , 
extension of the law, though, as the history of the crime of 
treason will show, it was not a complete one. The same 
principle was illustrated by indictments for libel in the latter 
part of the last century, and even in oar own days inste^nces 
may be found in indictments for conspiracy in which laxity 
of pleading might have had serious consequences to the 
accused. The fact is that looseness in the legal definitions 
of crimes can be met only by strictness and technicality in 
indictments, and that indictments may be reduced with 
safety to perfect simplicity as soon as the law has either been 
codified or reduced to certainty by authoritative writings 
which practically supply the place of a code. 

In concluding the subject of indictments and informations, 
I must say something of the right to prefer them. Indict- 
ments, as I have already shown, are, properly speaking, 
accusations made by the grand jury, who are called together 
to acquaint the court before which they are assembled with 
the crimes committed in their district. Any one, however, 
may appear before them with a bill or draft indictment and 
witnesses to prove its truth. Theoretically, or at least accord- 
ing to the earliest theory upon the subject, the court does 
not look beyond the grand jury. The result is that in this 
country any one and every one may accuse any one else, 
behind his back and without giving him notice of his inten- 
tion to do so, of almost any crime whatever. Till very lately 



11^ 



294 MALICIOUS INDICTMENTS ACTS. 



Chap. IX. the wprd " almost" ought to have been omitted, but in 185 
one of those small reforms was made which are characteristic of 
English legislation. In that year it was provided by ^ 22 & 23 
Vic. c. 17, that no person should indict another for perjury, sub- 
ornation of perjury, conspiracy, obtaining money by false pre- 
tences, keeping a gambling house, keeping a disorderly house, 
or any indecent assault, unless he is permitted to do so by a 
judge or the Attorney or Solicitor General, or unless he is bound 
over to prosecute by a magistrate. These provisions were 
extended to libels by 44 & 45 Vic. c. 60, s. 6. It is impossible 
to give any reason why the limitation so imposed on a dan- 
gerous right should not be carried much further, indeed it 
obviously ought to be imposed on all accusations whatever. 
It is a monstrous absurdity that an indictment may be brought 
against a man secretly and without notice for taking a false 
oath or committing forgery but not for perjury ; for cheating 
but not for obtaining money by falise pretences ; and for any 
crime involving indecency or immorality except the three 
above specified, namely, keepng gambling houses, keeping 
disorderly houses, and indecent assaults. There are many 
such offences (rape, for instance, and abduction) which are 
quite as likely to be made the subject of vexatious indict- 
ments intended to extort money. The Criminal Code Com- 
missioners of 1878-9 recommended that this act should be 
applied to all indictments whatever, and that the power of 
secret accusation, which came into existence only by an 
accident, should be altogether taken away. 

2 Criminal Informations. — The right to prefer a criminal 
information is restricted, both as regards the offences for 
which and the persons by whom it may be preferred. It 
may be preferred only for misdemeanours, and only by 
the Attorney or Solicitor General, or by the Master of the 
Crown Office acting under the orders of the Queen's Bench 
Division, upon a motion made in open court. 

Two conflicting accounts are given of the origin of 
criminal informations. One view of the subject is stated 
in the case of ^R. v. Berchet and others (1689), in 

1 See, too, 30 & 31 Vic. c. 35, ss. 1 & 2. 

2 For present law, see Dig. Grim. Proc. ch.. xxiii. arts. 195-206. 

3 1 Showers, 106-121. 



i 



EAKLY HISTORY OF INFORMATIONS. 295 

an elaborate argument which Sir B. Shower intended to Chap. IX. 
deliver on the question whether a criminal information 
would lie at the suit of a private person for a riot. The 
argument refers to a great number of records of infor- 
mations from the reign of Edward I. to the Revolution which 
show that throughout the whole of that period the king's 
officers exercised the right of putting persons on their trial 
for all sorts of misdemeanours in the Court of King's Bench 
without any indictment by a grand jury. Such a course was 
certainly taken before the Council Board and the Court of 
Star Chamber, as I have already shown, and it thus appears 
that from the earliest times the king accused persons of 
offences not capital in his own court by the agency of his 
immediate legal representatives without the intervention of 
a grand jury. 

The other view is advanced in ^Earbery's case, which 
also contains an undelivered argument. According to 
this view criminal informations are only a vestige of one 
of the provisions by which Henry VII. increased the 
stringency of the administration of criminal justice at 
the beginning of his reign. In 1494 an act was passed 
(11 Hen. 7, c. 3) which authorised the Courts of Assize 
and Quarter Sessions, ** upon information for the king to 
*' hear and determine all offences and contempts (saving 
"treason, murder, and felony) committed by any person 
"against the effect of any statute made and not repealed." 
This act was the one under which Empson and Dudley 
earned their obscure infamy. It was repealed in the year 
1509 (1 Hen. 8, c. 6). In the interval between 1494 and 
1509 informations were common, but they were afterwards 
disused except in the Court of Star Chamber, till they 
were revived in the time of Charles I., when an informa- 
tion was filed against Elliot, Hollia, and others, for words 
spoken in Parliament, the object of that mode of procedure 
being to avoid the unpopularity of a Star Chamber prosecu- 
tion. After the abolition of the Court of Star Chamber, it is 
said there was another interruption in the use of informations 
till the reign of Charles II., during which they were not 

1 20 St. Tr. 856. 



29^ LATER HISTORY OF INFORMATIONS. 

Chap. IX. very common. After the Revolution they became common, 
and were regulated by statute. It would be impossible to 
determine which if either of these accounts is true, without 
a full examination of the rolls ; but for practical purposes the 
inquiry is of little importance, as no one in the present day 
would question the legality of criminal informations. For 
upwards of 200 years they have been in use, and they have 
been recognised and regulated by several acts of parliament. 
"Whatever may have been its origin, the power to file criminal 
informations in the Court of King's Bench was used, not merely 
by the Attorney and Solicitor General in cases of public import- 
ance, but also by the Master of the Crown Office, who appears 
to have lent his name to any one who wished to use it. Thus 
all private persons were able to prosecute criminally any person 
who had offended them by any act which could be treated as 
a misdemeanour, without the sanction of a grand jury. This 
led to abuses in the way of frivolous malicious prosecutions, 
in which the defendants recovered no costs. This abuse was 
effectually remedied by 4 Will. & Mary, c. 18 (a.d. 1692), 
which enacts that the Master of the Crown Office shall file 
no criminal information " without express order to be given 
" by the said Court in open court" and upon certain con- 
ditions as to costs. The practical result of this statute has 
been to make a motion for a criminal information practi- 
cally equivalent to a proceeding before magistrates in order 
to the committal of the accused. It is usually resorted to in 
cases of a grave public nature, as, for instance, where a person 
holding an official position is libelled and wishes to have, not 
only a speedy remedy for the wrong done to him, but the 
opportunity of justifying his conduct and character upon 
affidavit. 

The power of the law officers of the Crown to file criminal 
informations is, or rather was, commonly exercised in the 
case of offences likely to disturb the public peace or the 
established order of things. Such offences are, however, now 
more frequently prosecuted by indictments. Throughout the 
latter part of the last and the beginning of the present 
century the hardships to which defendants were or were said 
to be exposed upon criminal informations were the subject 



PLEAS. 297 

of frequent complaints, and ^ some legislation took place on Chap. IX. 
the subject to which it is needless to refer in detail. 

Pleas. — The next step to the indictment is the arraign- 
ment, or calling of the accused person to the bar to plead to 
the charge made against him. There are now only four 
pleas in bar which an accused person can make, namely, not 
guilty, guilty, autrefois acquit, and autrefois convict. The 
only case in which a special plea can be pleaded is upon trials 
for libel, as to which some remarks will be made in reference 
to that offence. The plea of not guilty puts the prosecutor 
upon the proof of everything necessary to prove the prisoner's 
guilt. The plea of guilty admits everything and supersedes 
all further proceedings. The pleas of autrefois acquit and 
convict simply allege a previous acquittal or conviction for 
the same offence as the one charged in the indictment. A 
pardon might also be pleaded, and if a peer of parliament 
were arraigned for felony before any court other than the 
House of Lords or the Court of the Lord High Steward, or 
if a person were arraigned, e.g. for murder before a Court of 
Quarter Sessions, he might plead to the jurisdiction, but in 
practice such pleas are never heard of. 

Nothing more need be said here of the effect of these 
pleas, but some matters of considerable historical interest are 
connected with the subject of pleading in criminal cases. 
For reasons which it is now difficult to represent clearly 
to the mind, it seems to have been considered in early 
times that criminals accused of felony could not be properly 
tried unless they consented to the trial by pleading 
and " putting themselves on the country." The prisoner 
was first required to hold up his hand, and having done so, 
or having otherwise owned himself to be the person indicted, 
the substance of the indictment was stated to him, and he 
was asked the question, " How say you, are you guilty or not 
" guilty ? " If he said, " Not guilty,'* the answer was, 
" 2 Culprit, how will you be tried 1 " to which the prisoner had 

^ See 60 Geo. 3, niul 1 Ooo. 4, c. 4, "An Act to prevent delay in tho 
administration of jiiHtice in chhcs of miHdiMiiciinour." 

* Blackstono gives a curious account of the word "culprit." The word, he 
says, was coined out of two nbhreviations used in taking notes in the indict* 
ment for making up the record, if necessary. When the prisoner pleaded 



298 PUTTING HIMSELF ON THE COUNTRY. 

Chap. IX. to reply, '' By God and my country." Sacramental import- 
ance was attached for centuries to the speaking of these 
words. If a prisoner would not say them, and even if he 
wilfully omitted either " By God " or *' by my country," he 
was said to stand mute, and a jury was sworn to say whether 
he stood " mute of malice " or " mute by the visitation of 
" God." If they found him mute by the visitation of God 
the trial proceeded But if they found him mute of malice, 
if he was accused of treason or misdemeanour, he was taken 
to have pleaded guilty, and was dealt with accordingly. If 
he was accused of felony, he was condemned, after much ex- 
hortation, to the peine forte et &ure, that is, to be stretched, 
naked on his back, and to have "iron laid upon him as 
much as he could bear and more,"^ and so to continue, fed 
upon bad bread and stagnant water o-n alternate days, till he 
either pleaded or died. This strange rule was in force till 
the year 1772, when it was abolished by 12 Geo. 3, c. 20, 
which made standing mute in cases of felony equivalent to 
a conviction. In 1827 it was enacted, by 7 & 8 Geo. 4, c. 28, 
s. 2, that in such cases a plea of not guilty should be 
entered for the person accused. ^ A case in which pressing 
was actually practised occurred in 1726, when one Burn water, 
accused at Kingston Assizes of murder, refused to plead, and 
was pressed for an hour and three quarters with nearly four 
hundredweight of iron, after which he pleaded not guilty, 
and was convicted and hanged. In 1658 Major Strangeways 
w^as pressed to death in about ten minutes, a wooden frame 
and weights being placed anglewise over his breast, and 
several ^ persons standing on the frame to hasten his death. 

"not guilty," the clerk of assize wrote on the indictment the two words non 
cul. ; for "non" or " nient culpabW^ not guilty. The officer of the court 
then joined issue on belialf of the king by saying that the prisoner was guilty 
and that he (the officer) was ready to prove it. The note which was made of 
this was " cul.," for " culpable," guilty ; and ** prit.," which was the abbrevia- 
tion for " paratus verificare" the two abbreviations making "cul. prit." In 
the present day, for some reason which I do not pretend to understand, as 
soon as a prisoner pleads "not guilty" the clerk of assize writes on the in- 
dictment the word " puts." Does this mean " puts himself on the country," 
or can it in any way be connected with the old "prit" ? The forms used in 
court are all very old and mostly extremely curious. They are preserved all 
the more carefully because they are mere forms the significance of which is 
not usually understood by those who use them. The derivation of "culprit " 
given in dictionaries is "culpatus." (See Johnson's Dictionary by Latham; 
Skeat's Etymological Dictionary and Imperial Dictionary. 

^ Pike's History of Crime, ii. 195, 283. ^ ^ere they guilty of murder ? 



PEINE FORTE ET DURE. 299 

The object of refusing to plead was that as in that case there Chap. IX. 
was no conviction, no forfeiture took place, and the property '~ 

of the accused person was thus preserved for his heir. 

This practice of the ''peine forte et ditre" as it was called, 
is one of the most singular circumstances in the whole of the 
criminal law. ^ Its origin probably is to be found in the 
times when ordeals were abolished and petty juries introduced. 
As I have already observed, to be tried by an inquest instead 
of being tried by ordeal was at first an exceptional privi- 
lege, for which money was paid to the king. The ordeal 
being abolished, it is possible that it was thought hard to 
put a man to death upon a bare accusation without any kind 
of trial, and that it appeared to be contrary to the nature of an 
inquest to appoint a jury to try the prisoner unless he applied 
for it. If, therefore, an accused person said nothing at all, the 
court felt embarrassed. They could not put him to death upon 
what was felt with increasing distinctness to be a mere accusa- 
tion. They could not make an inquest pass upon him without 
his consent. They determined accordingly to extort his consent. 

Mr. Pike produces some evidence to show that in the 

early part of Edward I. 's, reign, people who refused to put 

themselves on their trial were executed, but this practice was 

opposed to the statute 3 Edw. l,^c. 12 (A.D. 1275), which 

provided that ''notorious felons" (felouns escriez), "and 

*' which openly be of evil name and will not put themselves 

" in inquests of felonies that men shall charge them with 

" before the justices at the king's suit, shall have strong and 

" hard imprisonment, as they which refuse to stand to the 

" common law of the land. But this is not to be understood 

" of such prisoners as be taken of light suspicion." According 

to 2 Barrington this meant that the prisoner who refused to 

plead was to be starved till he did, but not tortured, and 

he quotes in proof of it a pardon granted in the reign of 

Edward III. to a woman who "pro eo quod se tenuit 

" mutam," was put " in arcta prison^," and there lived 

without eating or drinking for forty days, which was 

regarded as a miracle. ^Tlie case which I have already 

1 This was pointed out, I think, for the first time in VWn^'sIfhsUrn/onyivie, 
i. 210, &c. * Obaervations on tlui StatutcH, p. 83. 

3 Ycar-Book, 30 k 31 Edw. 1, p. 631. Supra, p. 260. 



300 PEINE FORTE ET DURK 

Chap, IX referred to of the trial of Hugo for rape, in 1303, also favours 
' this view, for when Hugo refused to plead the justice said to 

him, " Si vos velitis legem communem refutare vos portabitis 
" poenam inde ordinatam. Scilicet uno die manducabitis 
** et alio die bibebitis ; et die quo bibitis non manducabitis, et 
" e contra ; et manducabitis de pane ordeaceo et non salo et 
'' aqua, &c." Nothing seems to have been said about pressing 
to death. There is a passage in ^ Britton to the same effect. 
Indeed the rule as to eating and drinking on alternate days 
implies that pressing was an innovation. A man could 
not be subjected to such a process for days together. The 
practice of pressing to death was, according to ^Barrington, 
introduced in the reign of Henry IV., the object being to get 
on with business, which would -be impossible if the Assize 
Court had to go on sitting till an obstinate prisoner was tired 
of bread and water on alternate days. The practice was 
afterwards supplemented by tying the thumbs with whip- 
cord, a milder form of torture which might render pressing 
unnecessary. 

The whole law of England presents no more characteristic 
incident than this. It exemplifies the extreme scrupulosity 
of its founders, their occasional and rather capricious indif- 
ference to the infliction of pain, the power of tradition and 
practice to vary even the plain meaning of a statute, and the 
astonishing tenacity of legal forms. Ordeals were abolished 
about 1215, yet the question of the officer of the court, 
*' Culprit, how will you be tried ? " and the prisoner's answer, 
" By God and my country," preserved the memory of them 
down to the year 1827. " By God "no doubt once meant 
" by ordeal," " my country " always meant the inquest or 
jury, and the ''and" marks the period at which ''by God" 
became a merely conventional phrase, preserving, though used 
in a different sense, the memory of an extinct institution. 

^ 1 Britton, 26 (by NichoUs). " Et si il ne se veulent aq^uitter si soint mis a 
" leur penaunce jekes autant qe il le prient. La penaunce soit tele qe et 
'* soint dechancez et sauntz ceijnture et saunz chaperon en pyer liu de la 
" prisoun sur la neuve terre assiduelment jour et nuyt et qe il ne mangeiisent 
'' for qe pagn de orge on de bien et qe il ne beyvent mie le jour qe il mange- 
" runt et le jour qe il beyvent ne mangerunt mie et qe il ne beyvent for qe 
" del eur et il soint en fyrges " {i.e. fers). 

2 P. 84. A man was compelled to plead by having his thumbs tied at the 
Old Bailey in 1734. 



CHALLENGING JURORS. 3OI 

There must have been a time when the prisoner answered, Chap. ix. 
"by God," if he had not bought a licence to have a jury, 
and meant to go to the ordeal, and '' by my country " if he 
had, and so avoided the ordeal. 

^ Impanneling the Jury. — The prisoner having pleaded, 
the next step is that of impanneling the jury by. whom he is 
to be tried. It follows from what I have already said as to 
the origin of trial by jury that the impanneling of the jury 
was in very ancient times equivalent to the choice of the 
witnesses by whom matters of fact were to be determined. 
The old law of evidence consisted perhaps mainly, at all 
events largely, of rules by which certain classes of witnesses 
were rendered incompetent; and the rules, whatever they were, 
as to challenging jurors, must have been in fact rules whereby 
the parties were enabled to exclude testimony, though we 
cannot now say how far the fact that a man was successfully 
objected to as a juryman operated to prevent him from 
giving those who were sworn the benefit of any evidence he 
might have it in his power to give. 

The right of challenge is mentioned byBracton incidentally 
and in very general terms. In the passage already commented 
upon he says, ^''Cum igitur procedendum sit de hujusmodi 
" ad inquisitionem ut ad judicium securius procedatur, et ut 
'* periculum et suspicio tollatur justitiarius dicat indictato 
*' quod si aliquem ex duodecim juratoribus suspectum habeat 
*' ilium justa ratione amoveat. Et illud idem dicatur de 
'' villatis ut si capitales inimicitise fuerint inter aliquos ipsorum 
** et indictatum vel si ob cupiditatem terrae habendae, ut 
" predictum est, qui omnes amovendi sunt ex just^ suspicione 
" ut inquisitio absque omni suspicione procedat." 

There are also references to challenges of jurors in the 
passages already quoted from Britton. Without following 
out the subject minutely, the following may be stated as the 
broad final result; The prisoner was allowed to challenge 
peremptorily, i.e. without showing cause, any number of 
jurors loss than thirty-five, or three whole juries. When or 
why he acquired this right it is difficult to say. Neither 
Bracton nor Britton mention it, and it is hard to reconcile it 
1 Dig. Crim. Proc. arts. 274-282. ' it 464. 



302 crown's right to challenge. 

Chap. IX. with the fact that the jurors were witnesses. A man who 
might challenge peremptorily thirty-five witnesses could 
always secure impunity. It probably arose at a period when 
the separation between the duties of the jury and the 
witnesses was coming to be recognised. The earliest statute 
on the subject, 33 Edw. 1, st. 4 (a.d. 1305), enacts "that 
" from henceforth, notwithstanding it be alleged by them 
'' that sue for the king that the jurors of those inquests, 
" or some of them, be not indifferent for the king, yet such 
'' inquests shall not remain untaken for that cause, but if 
" they that sue for the king will challenge any of those 
"jurors, they shall assign of the challenge a cause certain." 
This says and implies nothing at all as to the party's right of 
peremptory challenge, but implies that before that time the 
king had an unlimited right of peremptory challenge, and 
this, though it may seem harsh, is intelligible when we 
remember that the jurors were witnesses. It would obviously 
be right that the prosecutor should choose his witnesses, 
otherwise the jury might know nothing of the matter. 

Be this how it may, a right to challenge thirty-five jurors 
peremptorily did undoubtedly, before Fortescue wrote, accrue 
to prisoners accused of felony, for he describes and boasts 
of it, and that right remained unaltered till 25 Hen. 8, 
c. 3 (1533), when the number was limited to twenty in all 
cases except treason. The acts of Edward I. and Henry VIII. 
were repealed and re-enacted by 6 Geo. 4, c. 50. s. 29, which 
is still in force. 

There were at one time considerable doubts, which were 
not finally decided till our own time, as to the manner in 
which the rights of the Crown and the prisoner were to be 
regulated. The effect of various decisions on the subject is 
this : When, which rarely happens, the right of peremptory 
challenge is to be exercised in the strictest way, the following 
course is taken : The officer of the court calls over the 
whole pannel, so that both parties may know what jurymen 
answer to their names. The jurors who answer are then 
called, and the prisoner, as ''each comes to the book to be 
" sworn," must challenge him either peremptorily or for 
cause. If the prisoner does not challenge the juror the 






THE HEARING. 3O3 

Crown may direct him to stand by without assigning any Chap. IX. 
cause. When the whole pannel has been gone through, if 
twelve have not been sworn, the men ordered to stand by 
must be recalled, and if the prisoner does not challenge either 
peremptorily or for cause, the Crown must show its cause of 
challenge. In other words, the prisoner has twenty peremp- 
tory challenges, and the Crown has none, but the prisoner may 
be compelled to exhaust all his challenges before the Crown 
is called upon to show cause for its challenges. ^If a very 
large number of jurors is returned, the effect of this is to give 
the Crown what is nearly equivalent to a right of peremptory 
challenge. This, speaking practically, is a matter of hardly 
any importance in quiet times in England. In the course of 
my experience I do not remember more than two occasions on 
which there were any considerable number of challenges. 

When a challenge is made its truth is tried either by two 
persons named by the sheriff, or if any jurymen have been 
sworn, then by the two last sworn. 

A challenge to the array is also possible, though very 
uncommon. It occurs when it is alleged that the sheriff has 
made up the pannel unfairly. 

2 The Hearing. — The jury being sworn, the trial proceeds. 
It consists of the following steps. The prisoner is given in 
charge to the jury by the officer of the court. The counsel 
for the Crown states his case and calls his witnesses to prove 
it. If the prisoner calls no witnesses, or calls witnesses to 
character only, the counsel for the Crown may (unless the 
prisoner is undefended by counsel) at the end of his evidence 
sum up its effect to the jury. The prisoner, or his counsel, 
then makes his defence, and calls his witnesses. If he 
calls witnesses, the counsel for the Crown has a right to 
reply, and if the Attorney or Solicitor General prosecutes in 
person, he has a right to reply whether the prisoner calls 

^ Suppose, e.g. 150 jurymen are on the panned. The prisoner clmlli'nKt's 
twenty peremptorily. The Crown nuikcs 130 stand 1)V. The 130 are then 
called, and tin; pnsoner challjmj^es for cause. It is hardly likely that he will 
Im) able to allege a definite cause of challenge against nion; than a few ; say, 
however, that he challenges twenty mon; for cause;. There still remain 110 
as to whom tlie Crown must show cause. The Oown shows no catise, and the 
first twelve are sworn. Obviously ninety-eight remain >\hom the Cr 'wn luw 
practically challenged peremptorily. *» Dig. Grim. Proc. arts. 288-300. 



304 VERDICT— UNANIMITY OF JtTRORS. 

Chap. ix. witnesses or not. The judge then sums up the evidence. 
The jury return their verdict. If they acquit the prisoner, he 
is discharged. If they convict him, he is asked in cases of 
felony what he can say why judgment should not be passed 
upon him, and unless he says something in arrest of judgment, 
he is sentenced. 

Criminal trials as we know them, are the result of a long 
series of changes which occurred between the reign of Queen 
Mary, when "the earliest trials of which we have detailed 
accounts took place, and down to our own time. These 
changes can be understood only by a study of the trials them- 
selves, and by experience of the proceedings of the existing 
courts of justice. I have thought it best to treat this 
matter apart from the legal incidents of a trial ; and, accord- 
ingly, what I have to say upon it will be found in Chapters 
XI. and XII., the first of which traces the development of 
criminal trials through a period of about 200 years, whilst the 
second describes contemporary trials. I mention the matters 
above referred to here in order to preserve the continuity 
of this chapter. 

The Verdict. — In relation to the verdict of the jury 
two matters only require notice, namely, the rule that the 
jurors must be unanimous, and the right of the jury to 
return whatever verdict they think right without being 
subject to be punished at the will of the court. 

The rule which required unanimity is, I think, easily 
explained historically, and easily justified on grounds of 
expediency. The historical explanation appears from the 
passages already quoted from Bracton, Britton, and other 
early authorities. The jurors were required to be unani- 
mous because they were witnesses, and the rule was that 
twelve witnesses, or persons taken as witnesses, must swear 
to the prisoner's guilt before he could be convicted. 

The justification of the rule, now that the character of the 
, jury has changed from that of witnesses to that of judges of 
fact, seems to me to be that it is a direct consequence of the 
principle that no one is to be convicted of a crime unless his 
guilt is proved beyond all reasonable doubt. How can it be 
alleged that this condition has been fulfilled so long as some 



KEMAKKS ON UNANIMITY OF JUROES. 305 

of the judges by whom the matter is to be determined do in chap. IX. 
fact doubt ? It has been often suggested that after a certain 
time the verdict of a minority should be taken, as for instance, 
that the verdict of eleven should be taken after one hour, 
and that of nine after three hours. Such proposals appear 
to me to be open to the objection that they diminish the 
security provided by trial by jury in direct proportion to the 
occasion which exists for requiring it. If a case is easy 
you require unanimity. If it is difficult you accept a small 
majority. If very difficult a still smaller one. My own 
opinion is that trial by jury has both merits and defects, 
but that the unanimity required of the jurors is essential 
to it. If that is to be given up, the institution itself 
should be abolished. There is a definite meaning in the 
rule that criminal trials are to be decided by evidence 
plain enough to satisfy in one direction or the other a 
certain number of representatives of the average intelligence 
and experience of the community at ;_ large, but if some of 
the members of such a group are of one opinion and some 
of another, the result seems to be that the process has 
proved abortive and ought to be repeated. If the rule as 
to unanimity is to be relaxed at all, I would relax it only 
to the extent of allowing a large majority to acquit after a 
certain time. 

It is a remarkable illustration of the vagueness of the 
criminal law upon points which one would have thought 
could not have remained undecided, that till very modem 
times indeed it was impossible to say what was the law as to 
cases in which the jury could not agree, and it was possible 
to maintain that it was the duty of the presiding judge to 
confine them without food or fire till they did agree. It 
was, however, solemnly determined in 1866 in ^ the case of 
Winsor v. R. that in any case regarded by the judge as a 
case of necessity the jury may be discharged and the prisoner 
committed and tried a second time, and that a judge is 
justified in regarding a case in which the jury are unable to 
agree after a considerable length of time as a case of 
necessity. One result of this decision has practically been to 

1 L. R. 1 Q. B. 289, and Cam. Sc. 890. 
VOL. I. • X 



3o6 bushell's case — sir t. smith. 

Chap. IX. obviate the objections usually made to the rule requiring 
unanimity in jurors, all of which turned on the notion that 
the law required the jury to be starved into giving a 
verdict. Every authority bearing on the subject is referred 
to in the argument. ^ By the Jurors Act of 1870, juries 
may be allowed when out of court a fire, and refreshments 
to be procured at their own expense. 

The right of the jury to return a verdict according to 
their own consciences, and without being subjected in respect 
of it to any penal consequences was finally established by 
2 Bushell's case in the year 1670. In some earlier instances 
and particularly in the celebrated case of Sir Nicholas 
Throckmorton in 1554, the jurors were imprisoned and 
heavily fined for acquitting the prisoner. This, however, was 
regarded as a great stretch of power even in those days. Sir 
Thomas Smith says — ^ ''If they " (the jury) *'do pronounce 
" not guilty upon the prisoner against whom manifest witness 
'' is brought in the prisoner escapeth ; but the twelve not 
" only rebuked by the judges but also threatened of punish- 
" ment, and many times commanded to appear in the Star 
" Chamber or before the Privy Council for the matter. But 
" this threatening chanceth oftener than the execution thereof, 
'' and the twelve answer with most gentle w^ords they did 
''it according to their consciences and pray the judges to be 
" good unto them as they did as they thought right and as 
" they accorded all, and so it passeth away for the most part." 
He then refers to cases in which the jurors had been fined — 
no doubt having in his mind Throckmorton's case, and adds, 
" But these doings were even then of many accounted very 
" violent, tyrannical, and contrary to the liberty and custom 
" of the realm of England." 

Anciently, it may be, though the contrary seems as pro- 
bable, jurors who returned a corrupt verdict in criminal cases 
were liable to what was called an attaint at the suit of the 

1 33 & 34 Vic. c. 77, s. 23. 

^ 6 St. Tr. 999. In a case very similar to Bushell's, which happened a few 
years before, Kelyng, C.J,, fined the jury. His account of the matter is long 
and very curious. See edition of 1873, pp. 69-75. This matter was not printed 
in the old edition. 

^ Commonwealth of England, yi. ^11, 



ATTAINTS. 



307 



king, though not at the suit of the party. The attaint was a Chap. IX. 
remedy for a corrupt verdict in civil cases, and was tried by a 
jury of twenty-four, who, if they thought proper, might convict 
the first jury of a false verdict. The first jury were thereupon 
subjected to what was called the ^ " villain judgment," namely, 
imprisonment, infamy, and various forfeitures. This is referred 
to with applause by ^ Fortescue in the middle of the fifteenth 
century. It is spoken of by ^ Smith late in the sixteenth 
century as being in his time hardly known. Hale says some- 
what faintly, speaking late in the seventeenth century of 
perverse acquittals in criminal cases : * " I think in such 
'' cases ' the king may have an attaint.' " And ^ Lord 
Mansfield said in 1757, " The writ of attaint is now a mere 
" sound in every case." In 1825, attaints were abolished 
by 6 Geo. 4, c. 50, s. 60. 

The attaint (whether it ever really applied to criminal cases 
or not) deserves notice as one of the many proofs which may 
be given of the fact that jurors were originally witnesses. 
Perjury by a witness was not a crime known to the law of 
England till the reign of Queen Elizabeth. The only form of 
that offence which was punished in the early stages of our 
legal history was the perjury of jurors, which made them 
liable to an attaint. 

Judgment. — The verdict of the jury is followed by the 
judgment of the Court, which may be either that the prisoner 
be discharged or that he suffer punishment. This matter 
I do not propose to consider at length in this place, the 
importance of the subject of legal punishments and their 
history being such as to deserve separate consideration. 

1 Zrd Institute, 222. - Ch. xxvi. 

3 Bk. iii. ch. 2. " Attaints be very seldom put iu use." 

4 2 Hale, F. C. 310. 

'^ Bright V. Eynon, 1 Burr. 393. See, too, Barrington on the Statutes, 
100, 459. 



X 2 



308 APPEALS — WRIT OF ERROR. 



CHAPTER X. 

HISTORY OF THE LAW OF CRIMINAL PROCEDURE CONTINUED. — 
^PROCEEDINGS BY WAY OF APPEAL. 

Chap. X. HAVING in the preceding chapters described the proceedings 
connected with a criminal trial from the apprehension of the 
suspected person to the judgment, I proceed to give an 
account of the manner in which the judgment of the court 
may be called in question. 

It is a characteristic feature in English criminal procedure 
that it admits of no appeal properly so called, either upon 
matters of fact or upon matters of law, though there are a 
certain number of proceedings which to some extent appear 
to be, and to some extent really are, exceptions to this rule. 

The first of these exceptions is a writ of error. It is a 
remedy applicable to those cases only in which some irre- 
gularity apparent upon the record of the proceedings takes 
place in the procedure. 

In order to explain this it is necessary to describe what is 
meant by the record. As I have already observed the only 
document connected with a trial necessarily put into writing is 
the indictment. Upon this the clerk of assize or other officer 
of the court makes certain memoranda, showing the plea of the 
prisoner and the verdict of the jury. He also keeps a minute 
book in court in which he makes a note of the names of the 
jurors by whom different sets of cases are tried, an abstract 
of the indictments, and a memorandum of pleas, verdicts, and 
sentences. This is a mere private memorandum book having 
no legal authority, and kept merely for the purposes of 
the officer who keeps it. He is under no obligation to 
1 Dig. Crim. Proc. arts. 301-315, 



THE EECORD. 3O9 

keep it. No form is prescribed in which it is to be kept, and Chap. X. 
it never becomes in any way a public record. In all cases, 
however, except an infinitesimally small number, it is the 
only record kept of criminal trials, and nothing more meagre, 
unsatisfactory, and informal can well be conceived. If, how- 
ever, it becomes necessary (to use the technical expression) 
"to make up the record," it becomes the foundation of a 
history of the proceedings, set out with pedantic and 
useless minuteness and detail. The record in cases of felony, 
says ^Chitty, ''states the session of Oyer and Terminer, the 
" commission of the judges, the presentment by the oath of 
" the grand jurors by name, the indictment, the award of the 
*' capias or process to bring in the offender, the delivery of the 
" indictment into Court, the arraignment, the plea, the issue, 
" the award of the jury process, the verdict, the asking the 
" prisoner why sentence should not be passed upon him, 
" and the judgment."^ All this matter is stated with the 
utmost elaboration and detail, and the special matter which 
is of real importance and on which error is to be assigned 
comes in in its place in the midst of a quantity of matter 
which is of no sort of practical use. As the record takes no 
notice either of the evidence or of the direction given by the 
judge to the jury the grossest errors of fact or of law may r 
occur without being in any way brought upon the record, and v 

as the writ of error affirms that there is error on the record, i N/- 
no error which is not so recorded can be taken advantage 
of by those means. 

The history of writs of error in criminal cases is given by 
Lord Mansfield in ^ Wilkes's case. It is shortly this. Till 
the third year of Queen Anne writs of error in all such cases 
were issued entirely as a matter of favour, and were the 
means by which the Crown when so minded caused a con- 
viction to be reversed. The defendant brought his writ of 
error. The Attorney-General admitted that there was error. 
The court accepted his admission and the conviction was set 

1 1 Cr. Law. 719. 

2 In Orton's case the main question wm whether cumulative punishment 
could be awar(l(!(l for two ofToncofl charged in separate counts of the same 
indictment. The record wan a parchment roll of monstrous si/e, setting forth 
togotlKT with much other wholly unimportant matter, every order made by the 
court for the adjournment of the trial to the next sitting. ' i Burr. 2660. 



310 MOTIONS FOR NEW TRIALS. 

Chap. X. aside. But in the third year of Queen Anne's reign the court 
held, on the one hand, that in cases of misdemeanour writs 
of error ought to be granted as a matter of justice if tliere 
was probable ground to think that there actually was any 
error in the proceedings, and that if the Attorney-General 
refused to grant his fiat for the issue of such a writ they 
would direct him to grant it : they held on the other hand, 
that when the writ was issued they would not be contented 
with the Attorney-General's admission of error, but would 
judicially determine whether error existed or not. In cases 
of felony and treason, however, the issue of a writ of error 
was and always continued to be exclusively matter of favour. 
In more modern times this distinction has practically passed 
into oblivion. A writ of error still issues upon the fiat of the 
Attorney- General, but it is never refused when any point 
which can be regarded as arguable arises, whether in cases of 
felony or of misdemeanour, and when such a case does arise 
it is always judicially decided as a matter of course, whether 
error exists or not. 

Writs of error are for the reasons above given so limited 
in their application that they are but rarely used. 

^ Besides writs of error motions for new trials are permitted 
in some cases of misdemeanour, namely, cases of misdemeanour 
tried before the Queen's Bench Division in the exercise of 
its original jurisdiction, or sent down by that division to be 
tried at the Assizes on the Nisi Prius side. If a mis- 
demeanour is tried before Commissioners of Oyer and 
Terminer at the Assizes or at the Quarter Sessions, the 
Queen's Bench Division will not after verdict remove the 
case by certiorari, with a view to granting a new trial. 
If the parties wish to have the possibility of applying 
for a new trial, or to have a special jury, their course 
is to apply for a certiorari before the case comes on to be 
tried. If the court is satisfied that questions of difficulty 
are likely to arise they will issue a certiorari, and either 
have the case tried before the Queen's Bench Division at 
Westminster, or send it down to be tried as a Nisi Prius 
record at the Assizes or in the City of London. When the 
1 Chitty, C. L. 653—660. 



NEW TRIALS ON QUEENS BENCH RECORDS. 311 

case is so tried a new trial may be raoved for on tbe ground Chap. x. 
of misdirection, that the verdict was against the evidence, or 
on other grounds on which new trials are moved for in 
civil cases. According to Chitty, the first instance of such 
a new trial was in the year 1655. 

^ One case only has occurred in which a new trial was 
granted for felony, and that case was afterwards disapproved 
of and not followed by the Judicial Committee of the Privy 
Council in R. v. Bertrand (L. R. 1 F. C. 520). It is very 
remarkable that in the argument upon R. v. Scaife, no 
notice was taken of the novelty of the proceeding. 

2 When the jury return an imperfect special verdict in any 
criminal case a new jury may be summoned and the matter 
reheard (by a proceeding called a venire de novo). Special 
verdicts are verdicts in which the jury not wishing to ciecide 
upon the law find the facts specially, referring it to the court 
to say whether upon those facts the prisoner is or is not guilty 
of the crime for which he is indicted. 

Special verdicts have now gone almost entirely out of use, 
having been superseded by the establishment of a court 
called the Court for Crown Cases Reserved. The history of 
this court is as follows. From very early times a practice 
had prevailed that a judge before whom any criminal case 
of difficulty arose at the Assizes or elsewhere, should respite 
the execution of the sentence or postpone judgment, and 
report the matter to the other judges. The question reserved 
was argued before the judges by counsel, not in a court of 
justice but at Serjeant's Inn of which all the judges were | 
members. If they thought that the prisoner had been im- ' ' 
properly convicted he received a free pardon. If not, the 
sentence was executed or judgment was passed. No judg- 
ment was delivered and no reasons were given in such cases, 
the whole proceeding being of an informal kind. When a 
case was tried at the Quarter Sessions no means for ques- 
tioning the result existed. ^In 1848 this informal tribunal 
was erected into a court called the Court for Crown Cases 
Reserved. It consists of all the judges ; but five, of whom 

1 R. V. Scaife, 17 Q. B. 238 (1851). » Chitty, C. L, 664. 

> 11 & 12 Vir. c. 78. 



i\ 



312 COURT FOR CROWN CASES RESERVED. 

Chap. X. the ^ Lord Chief Justice must be one, are a quorum. If, 
however, the five judges differ, the minority are not bound 
by the decision of the majority, but any one of them may 
require the matter to be referred to the whole body of 
fifteen. This course was taken in the well-known case of 
R. V. Keyn. It is obviously extremely inconvenient, and it 
may be doubted whether those who framed the statute 
intended it to be taken. Any judge or chairman, or 
recorder of a Court of Quarter Sessions, may state a case 
for the opinion of the court " as to any question of law 
" which shall have arisen at " any "trial," either committing 
or bailing the prisoner in the meanwhile. The court hears 
the case argued, delivers judgment, and may either reverse 
the judgment (if any) or confirm it, or direct the court by 
which the case was stated to give judgment. This court can 
determine questions of law arising at the trial, but cannot 
take notice of questions of fact, and it is absolutely in the 
discretion of the presiding judge at a trial whether he will 
or will not reserve a point for its decision. 

The result of the whole is that a provision, sufficient though 
intricate and technical, is made for the decision of questions 
of law arising at the trial by courts in the nature of appellate 
tribunals ; but it must be added that the criminal law is now 
for the most part so well settled and understood that this 
is a matter of little practical importance. Writs of error 
2 are of rare occurrence, and the Court for Crown Cases Re- 
served sits only three or four times a year for a day, or more 
often half a day, at a time, and probably does not determine 
twenty cases a year. 

It is a much more important circumstance that no pro- 
vision whatever is made for questioning the decision of a 
jury on matters of fact. However unsatisfactory such a 

^ Till the abolition of those offices the Lord Chief Justice of the Common 
Pleas, or the Lord Chief Baron of the Exchequer, or the Lord Chief Justice of 
the Queen's Bench, was to be one of the judges. 

2 The writ of error in Orton's case, decided in March, 1881, and the 
writ of error in Bradlaugh v. E, in 1878, are the only writs of error in 
criminal cases which have been decided for a considerable time. I could 
never understand upon what ground it was thought necessary to grant a 
writ of error in Orton's case. No one of the three courts before which the 
matter came felt the smallest doubt upon any of the points raised in it. 



POWERS OF HOME SECRETARY. 3I3 

verdict may be, whatever facts may be discovered after the Chap. x. 
trial, which if known at the trial would have altered the 
result, no means are at present provided by law by which a 
verdict can be reversed. All that can be done in such a case 
is to apply to the Queen through the Secretary of State for 
the Home Department for a pardon for the person supposed 
to have been wrongly convicted. 

This is one of the greatest defects in our whole system of 
criminal procedure. To pardon a man on the ground of his 
innocence is in itself, to say the least, an exceedingly clumsy 
mode of procedure ; but not to insist upon this, it cannot be 
denied that the system places every one concerned, and espe- 
cially the Home Secretary and the judge who tried the case 
(who in practice is always consulted), in a position at once 
painful and radically wrong, because they are called upon to 
exercise what really are the highest judicial functions with- 
out any of the conditions essential to the due discharge of 
such functions. They cannot take evidence, they cannot 
hear arguments, they act in the dark, and cannot explain 
the reasons of the decision at which they arrive. The evil 
is notorious, but it is difficult to Jfind a satisfactory remedy. 
The matter has been the subject of frequent discussion, and 
it was carefully considered by the Criminal Code Commission 
of 1878— 9. I have nothing to add to the following obser- 
vations which occur in their Report as to the reforms which 
seem to be required in regard to the whole matter of appeals 
in criminal cases. 

After describing the different forms of appeal now in use 
much as I have described them above, though in other words, 
^ the Report proceeds : " It seems to us that in order to form 
" a complete system these various forms of proceeding ought 
" to be combined. For this purpose we propose, in the first 
"place, to constitute a single Court of Criminal Appeal 
" closely resembling the Court for Crown Cases Reserved, 
" but with two important differences. "We propose tliat, as 
"in other courts, the minority should bo bound by the 
"majority. A court composed of fifteen judges is incon- 
" veniently large. If on a point of importance a court of 
' Pp 88—40. 



314 



PROPOSALS OF CRIMINAL CODE COMMISSION. 



Chap. X. " five should be divided, it might be desirable that a further 
" appeal should be possible. We accordingly propose that 
" the court should have power to permit an appeal to the 
" House of Lords. 

"We do not interfere with the present practice as to trials 

" in the Queen's Bench Division, and we propose that in the 

" case of such trials the Queen's Bench Division should be 

'' the Court of Appeal, and that it should have power to give 

' " leave to appeal to the House of Lords. 

" As to the power to appeal and the cases in which an 
" appeal should lie, the Draft Code proposes to make consider- 
'* able changes in the existing law as regards both matter of 
" law and matter of fact. With regard to matter of law, the 
"judge has at present absolute discretion as to reserving or 
" not reserving questions which arise at the trial and do not 
" appear on the record. This we think ought to be modified. 
*' We propose accordingly that the judge shall be bound to 
" take a note of such questions as he may be asked to 
"reserve, unless he considers the application frivolous. If 
" he . refuses to grant a case for the Court of Appeal, the 
"Attorney-General may in his discretion grant leave to the 
" person making the application to move the Court of Appeal 
" for leave to appeal, and the court may direct a case to be 
" stated. The court on hearing the case argued may either 
" confirm the ruling appealed from, or grant a new trial, or 
" direct the accused to be discharged ; in a word, it may act 
" in all respects as in a civil action when the question is one 
" of law, and that on the application of either side. This in 
" some ways is favourable, and in others unfavourable, to 
" accused persons. By the existing law the prisoner's right 
" to appeal on a point of law is, generally speaking, subject 
" to the absolute discretion of the judge ; but if he is per- 
" mitted to appeal, and if the court above decides in his 
" favour, the conviction is quashed, although in a civil case 
** he would gain nothing but a right to a new trial. Under 
" section 542 the prisoner would be able to appeal, with the 
" leave of the Attorney-General, against the will of the 
"judge, but if he succeeded he would in many cases only 
" obtain a new trial. If the matter appealed upon was a 



PROPOSALS OF CRIMINAL CODE COMMISSION. 315 

" mere irregularity, immaterial to the merits of the case, the Chap. x. 

" Court of Appeal would have power to set it right. All 

" this would diminish the value of the right of appeal to 

" prisoners, though it would increase its extent. It must be 

'•' observed, too, that the right of appeal on questions of law 

" is given equally to both sides. The Commissioners as a 

" body express no opinion on the expediency of this. If it 

*' is thought proper to confine the right to the accused, the 

*' alteration of a few words in the section would affect that 

" object. In dealing with appeals upon matter of law little 

'* is wanted beyond an adaptation of the existing law. 

" It is more difficult to provide in a satisfactory way for an 
" appeal upon matters of fact. It is obvious that the only 
" practicable means of giving such an appeal is by permitting 
'* convicted persons to move under certain circumstances for a 
" new trial, either on the ground that the verdict was against 
" the evidence, or on the ground that the verdict has been 
'' shown to be wrong by facts discovered subsequently to the 
" trial. If the ground on which a new trial is sought for is 
" that, the verdict was against the evidence, the case is com- 
" paratively simple. In such cases the judge before whom 
" the case was tried ought to have power to give leave to 
" the convicted person to apply to the Court of Appeal for a 
" new trial. If the convict had an absolute right to make 
" such an application, it would be made whenever the convict 
" could afford it. By making the leave of the judge who 
" tried the case a condition for such an application, such 
*' motions would be practically confined to cases in which the 
"judge thought the jury had been harsh towards the prisoner. 
" However, when the application was made the Court of 
" Appeal could deal with it as in civil cases. 

" A much more difficult question arises in relation to cases 
" which occur from time to time, where circumstances throw- 
" ing doubt on the propriety of a conviction are discovered 
" after the conviction has taken place. It these cases it was 
" provided by ^ the bill that the Secretary of State should 
" have power to give leave to the person convicted, to apply 

^ Thi.s was a Drnft Code prepared by mc, and introduced into Parliament 
by Sir John Holker in 1878. 



3l6 PROPOSALS OF CRIMINAL CODE COMMISSION. 

Chap. X. "to the Court of Appeal for a new trial. Upon the fullest 
" consideration of the subject we do not think that such an 
" enactment would be satisfactory. In such a case the Court 
" of Appeal must either hear the new evidence itself, or have 
" it brought before it upon affidavit. In the former case the 
" court would substantially try the case upon a motion for a 
" new trial, and this is opposed to the principle of trial by 
"jury. In the latter case they would have no materials for 
" a satisfactory decision. It is impossible to form an opinion 
"on the value of evidence given on affidavit and e,x 'parte 
"until it has been checked and sifted by independent inquiry. 
" Such duties could not be undertaken by a Court of Appeal. 
" If the Secretary of State gave leave to a convict to move 
" the Court of Appeal for a new trial on evidence brought 
" before the' court by affidavit, the only well-ascertained fact 
''before the court would be that the Secretary of State 
'' considered that there were grounds for such an application. 
'' This would make it difficult to refuse the application. The 
" Secretary of State would be responsible only for granting 
''leave to move the court for a new trial. The court, in 
"granting a new trial, would always in fact take into account 
" the opinion indicated by the Secretary of State's conduct. 
" It must also be remembered that a court of justice in de- 
" ciding upon such applications would, in order to avoid 
"great abuses, be obliged to bind itself by strict rules, 
" similar to those which are enforced in applications for new 
"trials in civil cases on the ground of newly-discovered 
" evidence. Such applications cannot be made at all after 
"the lapse of a very short interval of time, and are not 
" granted if the applicant has been guilty of any negligence ; 
" and this stringency is essential to the due administration of 
"justice and to the termination of controversies. It would 
" be unsatisfactory to apply such rules to applications for new 
" trials in criminal cases. No matter at what distance of 
" time the innocence of a convicted person appeared probable, 
" — no matter how grossly a man (suppose under sentence of 
" death) had mismanaged his case, it would be impossible to 
" refuse him a fresh investigation on the ground of such lapse 
"of time or mismanagement. Cases in which, under some 



PKOPOSALS OF CKIMINAL CODE COMMISSION. 317 

'* peculiar state of facts, a miscarriage of justice takes place, Chap. x. 
" may sometimes though rarely occur ; but when they occur it 
" is under circumstances for which fixed rules of procedure 
" cannot provide. 

"Experience has shown that the Secretary of State is a 
" better judge of the existence of such circumstances than a 
*' court of justice can be. He has every facility for inquiring 
" into the special circumstances ; he can and does, if neces- 
" sary, avail himself of the assistance of the judge who tried 
" the case, and of the law officers. The position which he 
" occupies is a guarantee of his own fitness to form an 
" opinion. He is fettered by no rule, and his decision does 
" not form a precedent for subsequent cases. We do not see 
" how a better means could be provided for inquiry into the 
" circumstances of the exceptional cases in question. The 
" powers of the Secretary of State, however, as to disposing 
'* of the cases which come before him are not as satisfactory 
*' as his power of inquiring into their circumstances. He 
" can advise Her Majesty to remit or commute a sentence ; 
" but, to say nothing of the inconsistency of pardoning a man 
" for an offence on the ground that he did not commit it, 
" such a course may be unsatisfactory. ^ The result of the 
" inquiries of the Secretary of State may be to show, not 
" that the convict is clearly innocent, but that the propriety 
" of the conviction is doubtful ; that matters were left out of 
" account which ought to have been considered ; or that too 
" little importance was attached to a view of the case the 
" bearing of which was not sufficiently apprehended at the 
" trial ; in short, the inquiry may show that the case is 
" one on which the opinion of a second jury ought so be 
" taken. If this is the view of the Secretary of State, he 
■' ought, we think, to have the right of directing a new trial 
" on his own undivided responsibility. Such a power we 
" accordingly propose to give him by section 545. 

" With respect to the materials to be laid before the Court 
" of Appeal we propose to abolish the present record. It 
''' is extremely technical and gives little real information. 

^ Aa an illustration of these remarks, see the case of Smethurst at the end of 
Vol. III. 



3lS PROPOSALS OF CRIMINAL CODE COMMISSION. 

Chap. X. ♦< Instead of it, we propose that a book to be called the Crown 
" Book should be kept by the officer, which should record in 
" common language the proceedings of the court. In prac- 
" tice the record is hardly ever made up, and if it is necessary 
" to make it up, the officer's minute-book affords the only 
" materials for doing so. Our proposal is practically to 
" substitute the original book for the record which is made 
'" up from itj and is merely a technical expansion of the 
" original. 

•*We also propose that the Court of Appeal should have 
" power to call for the judge's notes, and to supply them if 
" they are considered defective by any other evidence which 
*' may be available, — a shorthand writer's notes for instance. 
'* We consider the statutory recognition of the duty of the 
"judge to take notes as a matter of some importance. Upon 
" the subject of appeal there is not much difference between 
*' the Draft Code and the Bill. The provisions of the former 
'* are more simple." 



i 



HISTORY OF CRIMINAL TRIALS. 3I9 



CHAPTER XI. 

HISTORY OF CRIMINAL TRIALS IN ENGLAND FROM 

1554—1760. 

In the earlier chapters I have given the history of each of Chap. XI. 
the steps in the prosecution of criminals from the first mo- 
ment when a person is suspected down to the final conclusion 
of the proceedings. I have, however, intentionally omitted 
all but the most cursory notice of the actual trial by which 
the guilt or innocence of the suspected person is determined. 
In attempting to relate its history I shall adopt a somewhat 
different method from that which I have hitherto followed. 
Instead of treating separately the history of the opening 
speech of the counsel for the Crown, the prisoner's defence, 
the examination of the witnesses, and the judge's summing 
up, I shall give an account of characteristic trials or groups 
of trials from the reign of Qaeen Mary, when the earliest 
trials of which we have detailed reports took place, till the 
reign of George III., when the system now in force was 
established in all its main features. 

It may be said that the matter of which I now propose to 
treat belongs rather to history proper than to law ; but the 
great interest of English criminal law lies in the circum- 
stance that it has been closely connected with several of 
the turning-points of English constitutional history, and the 
proceedings have been recorded in the State Trials with 
such completeness and authenticity as to give to ^ that great 

^ The State Trials contain thirty-tlircio volumes, royal 8vo., averaging, I 
suppose, from 600 to 700 pages, in double column and small typo. The col- 
lection extends from the earliest times to the year 1822, the last trials reported 
l)eing those of Thistlewood and his associates for the Cato Street Conspiracy. I 



320 BAGA DE SECKETIS. 

Chap. XI. collection the character of a judicial history of England. The 
principal groups of trials of which accounts have been pre- 
served illustrate the gradual development of the system 
which at present exists. They will be found to throw 
light on every part of it. 

One large class of cases, namely, trials for heresy and 
other ecclesiastical offences, I pass over for the present, as I 
propose to notice some of them in a separate chapter. I may 
observe, however, that the reports of some of them are the 
earliest detailed reports which we possess of any criminal 
proceedings. 

BAGA DE SECRETIS. 

By way of introduction to the first group of trials of which 
we have detailed reports, I will say a few words of the traces 
which still exist of those which occurred during the preceding 
seventy-seven years, namely, between 1477 and 1544. There 
are no reports, properly so called, of criminal trials during 
this period, but a remarkable, though in some respects dis- 
appointing, document exists, which I refer to on account 
rather of its curiosity than on account of any positive inform- 
ation upon criminal procedure which it contains. It is a 
translation of part of the contents of the Baga de Secretis for 
the reigns of Edward IV., Henry VII., and Henry VIII. 
The contents of this bag consist of indictments for a great 
variety of offences tried in the Court of King's Bench in 
the years mentioned, the earliest occurring 19th May, 1477, 
and the latest 13th January, 1547. In our own times the 
names of the witnesses always appear on the back of the 
bill, but this practice was not then adopted, and the docu- 
ments referred to contain no other indication of the nature of 
the evidence, or of the management of the trial, than can be 

think no more important addition to the materials for the history of our own 
times could be made than a continuation to the present day. The great trials 
which have occurred during the last sixty years have been unequalled in ex- 
cellence, and, to say the least, have been equal in interest to any of those of 
former times. The trials of the Bristol rioters, the trial of O'Connell in 
1844, the trials for treason-felony in England and Ireland in 1848, many 
of the trials for conspiracy, tlie trial of Bernard for the Orsini plot, the 
various proceedings against Governor Eyre, the Fenian trials subsequent 
to 1865, and very many more, are parts, not only of the legal, but also 
of the political and general history of England which ought to be carefully 
preserved. 



INDICTMENTS UNDER HENRY VII. AND HENRY VIII. 321 

found in the terms of the indictments. These, however, are Chap. XI. 
not quite so barren as such documents would be at present. 
Some of them are so detailed and circumstantial as to show 
that evidence must have been carefully taken before the 
indictment was sent before the grand jury, and the contents 
of these are very curious. For instance, part of ^ the indict- 
ment against Lord Warwick for high treason, by conspiring 
with Perkin Warbeck in the Tower against Henry VII., runs 
as follows : — " The Earl and Cleymound, on the said 2nd 
" August, 14 Henry VII., being in the chamber of the Earl 
" in the Tower of London, the said Cleymound, in order to 
" comfort the said Peter, then being in a chamber in the 
" Tower under their chamber, by assent of the said Earl 
" knocked upon the vault of the said chamber to the intent 
" that the said Peter might hear the Earl and Cleymound, and 
" Cleymound said to the said Peter, ' Perkin, be of good 
" ' cheer and comfort,' and further showed to him that he 
" had a certain letter, directed to the said Peter, which he 
" had received from one James, a clerk of Flanders, which 
" letter he, Cleymound, would, as he promised, deliver to the 
" said Peter the following day," and so on, with many further 
details. 

2 The indictment against the Duke of Buckingham, 
13th May, 1521, is even more detailed and circumstantial. 
Here is a specimen : — " The Duke, in order to carry his inten- 
" tion " (to depose the King) " into effect did, on the 24th 
" day of April, 4 Henry VIII., lead one John Delacourt, late 
" of Thombury, in the county of Somerset, to one Nicholas 
" Hopkins, a monk of the Carthusian Priory of Henton, who 
" pretended to have knowledge of future events by certain 
" revelations which he feigned to have had, in order that the 
" Duke might have further knowledge thereof from the said 
" Nicholas." It then proceeds to set out the particulars of 
various negotiations between the Duke and Father Nicholas. 
There is one case in which it is still possible to compare tlie 
indictment with the evidence given at the trial. This is the 
case of Sir Thomas More, who was tried on the 1st July, 
1535, for denying the King's supremacy. A report of the 

1 Barja tie Sec. p. 216. ' lb. p. 230. 

VOL. I. T 



32 2 INDICTMENT AND EVIDENCE AGAINST MORE. 

Chap. XL trial itself is given in the State Trials. It is taken principally 
from the Life of Sir Thomas More by his great-grandson, 
but it contains some matter which is not to be found either 
in that work or in Hall's Chronicle, or in Lord Herbert's 
Life of Henry VIII., which works are also referred to. In 
particular the account in the State Trials says (I know not 
who is supposed to be speaking, but I suppose More, 
the great-grandson) : — " The indictment was very long, 
" but where to procure a copy of it I could never learn ; 
" it is said in general it contained all the crimes that 
" could be laid to the charge of any notorious malefactor, 
" and Sir Thomas professed it was so long that he could 
" scarce remember the third part of what was objected 
" therein against him." To judge from the abstract, which 
fills a folio page, the indictment was not at all long. It 
began by setting forth the substance of 26 Hen. 8, c. 1, 
which enacts that Henry VIII. and his successors, kings 
of this realm, " shall be taken, accepted, and reputed the 
" only supreme head on earth of the Church of England." It 
then sets out the substance of c. 13 of the same statute, which 
makes it high treason " if any person maliciously hath wish or 
" desire, by words or writing, to deprive the king of his 
" dignity, title, or name of his royal estate." It then avers 
that More, traitorously imagining and attempting to deprive 
the king of his title as supreme head of the Church, did, 
when examined before Cromwell and others, whether he 
accepted the king as supreme head on earth of the Church 
of England, refuse to answer directly, saying : " I will not 
" meddle with any such matters, for I am fully determined to 
" serve God, and to think upon his passion, and my passage 
'' out of this world." 

Further, it sets out a letter written by More to Fisher, and 
a statement made by More upon examination at the Tower, 
in each of which he said that the statute was like a two- 
edged sword, that if he answered one way he should offend 
his conscience, and if he answered the other, lose his life. 

Lastly, it sets out a conversation between More and Rich, 
the king's Solicitor-General, in which, after some introductory 
matter. More said that if a statute made the king supreme 



CASE OF MORE. 323 

head of the Church, the subject cannot be obliged, because Chap. XI. 
his consent cannot be given for that in Parliament. In the 
report in the State Trials it is said that Rich swore to the 
conversation as laid in the indictment. To this it is said Sir 
Thomas replied : "If I were a man, my lords, that had no regard 
" to my oath, I had had no occasion to be here at this time, as 
" is well known to everybody, as a criminal ; and if this oath, 
" Mr. Rich, which you have taken be true, then I pray I may 
" never see God's face, which, were it otherwise, is an impre- 
" cation I would not be guilty of to gain the whole world." 
The account proceeds : " More, having recited in the face of 
" the court all the discourse they had together in the Tower 
" as it truly and sincerely was," added bitter reproaches against 
Rich, saying, amongst other things : '' You always lay under 
" the odium of a very lying tongue, a great gamester, and of 
'' no good name and character either here" (in Westminster 
Hall) " or at the Temple." More was convicted and executed. 
^ Lord Campbell has spoken in terms of almost passionate 
indignation of this trial. He adopts absolutely, and with no 
evidence whatever, More's statement that Rich committed 
perjury. It is impossible to have any decided opinion as to 
the details of a conversation held nearly 350 years ago ; but 
even assuming the correctness of the partial and unlawyerlike 
report of the proceedings which remains, there are some 
reasons to think that Rich's evidence was substantially 
true. First, the reporter does not give More's own account 
of the conversation. This looks as if it differed only in 
detail from Rich's. Secondly, More's oaths and his 
vehemence against Rich look as if Rich had, at all events, 
told some truth. Thirdly, there can be no doubt that 
More did think the Act of Supremacy wrong, and beyond 
the competency of Parliament, for in arrest of judgment 
he said that the indictment " is founded upon an Act of 

^ Caniphfjll's Cluincellors, ii. 59—63. This delifchtful writer, and most 
powerful and impressive of judges, seems to me to bo in liis l)iogriii)lii('s as 
impresHilde by topics of prejudice as a common juryman. More's gcMiius and 
the ])eHuty of his character make it impossible for I^ord Campbell to see 
anything but Perjjiry and oppression in nis trial ; yet, after all, why is it 
unlikely that he should have unint<!ntion(illy expressed an opinion which 
he held so strongly that the terms in which ho moved in arrest of judgment 
were an act of high treason within the statute ? 

Y 2 



324 CASE OF ANNE BOLEYN. 

Chap. XI. ''Parliament directly repugnant to the laws of God and his 
" Holy Church." Fourthly, More laid great stress upon the 
argument that, even if Rich spoke the truth, " it cannot in 
" justice be said that they were spoke maliciously." As far 
as the law goes, I think the word '' malicious " in the statute 
could mean no more than seriously — meaning what was said — 
the meaning being regarded by the legislature as in itself bad. 
Whether it was, under all the circumstances of the time, expe- 
dient to make the denial of the king's supremacy high treason 
is a question on which I have no opinion for want of study ; 
but I cannot see that More's trial was in itself unfair, though 
no doubt it was grossly indecent that the principal witness 
should also act as counsel for the Crown, as Lord Campbell 
says Rich did, though the fact is not mentioned in the report 
to which he refers. 

1 The indictment against Anne Boleyn is more concise, but 
the charges in it are specific and pointed, though ^ they do 
not enter into details. They alleged that she committed 
adultery with five specified persons on five separate occasions, 
time and place being assigned in each instance. As to the 
proceedings at the trial itself, nothing appears beyond a 
formal record of the verdict. The indictments against 
Katharine Howard and her various adulterers enter into 
greater detail. There are six indictments, relating to offences 
committed in Yorkshire, Middlesex, Lincolnshire, the City of 
Lincoln, Surrey, and Kent, respectively. One only (the 
Yorkshire indictment) is fully abstracted. It enters into a 
certain amount of detail, especially as to Lady Rochford's 
acting as a " common procuress " between them. 



L— 1554— 1637. 

The first group of trials which I shall consider are those 
which took place betweeen 1554 and 1637, the first being the 

Baga de Sec. p. 244. 
- I have not referred to the original, but the abstract suggests a possibility 
that it may contain some details omitted from the abstract from regard to 
decency. It says that the Queen "did falsely and traitorously procure, by 
"means of indecent language, gifts, and other acts therein stated, divers of 
" the King's doctors and familiar servants to become her adulterers." 



TRIALS BETWEEN 1 5 54 AND 1637. 325 

trial of Sir Nicholas Throckmorton, and the last being the Chap. XI. 
proceedings in the Star Chamber which led to its abolition. 
^ The report of the trial of Throckmorton is the earliest 
which is full enough to throw much real light on the pro- 
cedure which then prevailed. All the trials which took place 
during this period seem to have followed much the same 
course, and to have been conducted in the same manner. 

The cases of which reports remain were, for the most part, 
of great political importance, and were accordingly, during 
the early stages of the procedure, under the charge not of the 
justices of the peace, but of the Privy Council, and especially 
of the judges who were members of it, and the law officers 
of the Crown. The suspected person, having been arrested, 
was kept in confinement more or less close according to cir- 
cumstances, and was examined in some cases before the Privy 
Council, in some cases by the judges, and in some instances 
by torture. The evidence of other persons, and more 
especially the evidence of every oiie who was suspected of 
being an accomplice, was taken in the same manner. When 
the case was considered ripe for trial the prisoner was 
arraigned and the jury sworn, after which the trial began by 
the speeches of the counsel for the Crown. There were usually 
several counsel, who, in intricate cases, divided the different 
parts of the case between them. The prisoner, in nearly 
every instance, asked, as a favour, that he might not be 
overpowered by the eloquence of counsel denouncing him in 
a set speech, but, in consideration of the weakness of his 
memory, might be allowed to answer separately to the dif- 
ferent matters which might be alleged against him. This 
was usually granted, and the result was, that the trial became 
a series of excited altercations between the prisoner and the 
different counsel opposed to him. Every statement of counsel 
operated as a question to the prisoner, and indeed they were 
constantly thrown into the form of questions, the prisoner 
either admitting or denying or explaining what was alleged 
against him. The result was that, during the period in ques- 
tion, the examination of the prisoner, which is at present 
scrupulously, and I think even pedantically, avoided, was the 

1 1 St. Tr. 396. 



326 throckmokton's case. 

Chap. XI. very essence of the trial, and his answers regulated the pro- 
duction of the evidence ; the whole trial, in fact, was a long 
argument between the prisoner and the counsel for the Crown, 
in which they questioned each other and grappled with 
each other's arguments with the utmost eagerness and 
closeness of reasoning. The judges occasionally took part in 
the discussion ; but, in the main, the debate was between the 
parties. As the argument proceeded the counsel would 
frequently allege matters which the prisoner denied and 
called upon them to prove. The proof was usually given 
by reading depositions, confessions of accomplices, letters, 
and the like ; and this occasioned frequent demands by the 
prisoner to have his " accusers," i.e. the witnesses against 
him, brought before him face to face, though in many cases 
the prisoners appear to have been satisfied with the 
depositions. When the matter had been fully inquired into 
by this searching discussion, the presiding judge " repeated " 
or summed up to the jury the matters alleged against the 
prisoner, and the answers given by him ; and the jury gave 
their verdict. 

I will give an account of a few of the most remarkable 
trials as specimens. 

Sir N. Throckmorton was tried for high treason in 1554, 
^the charge against him being that he compassed and 
imagined the Queen's death, and levied war against her, and 
adhered to her enemies ; the alleged fact on which the charge 
was founded being a conspiracy with Wyat before his rising. 

The trial took place on the I7th April, 1554. ^The Court 
sat probably from 8 A;M. till 2, or, at any rate, some time before 
3 P.M., as at their rising they adjourned till 3, and the jury 
gave their verdict at 5. The trial would seem accordingly 
to have lasted altogether for about six hours. It consisted 
almost entirely of a verbal duel between Throckmorton and 
the counsel for the Crown, namely, Serjeant Stanford, who, 
I suppose, may have been the author of Stanford's Fleas of the 
Crown, and Griffin, the Attorney-General. ^ Stanford took by 

1 The copy of the indictment is very imperfect. 1 St. Tr. p. 869. 

2 In Fortescue's time the judges usually sat from 8 to 11. 

^ He was probably the Prime Serjeant, who, if there were such a personage 



thkockmorton's case. 327 

far the most conspicuous part in the proceedings. He began Chap. xi. 
by asking Throckmorton if he had not sent Winter to Wyat 
in Kent to confer about taking the Tower of London 
and about Wyat's rising ? Throckmorton said he had told 
Winter that Wyat wanted to speak to him ; but that he said 
nothing on the matters stated, and challenged Stanford to 
prove what he alleged. Stanford read Winter's '' confession," 
and offered to call Winter to swear to it. Throckmorton said 
that, for the sake of argument, he would admit the ''con- 
" fession " to be true, and pointed out that certain parts of it 
were highly favourable to him, and that no part of it showed 
anything criminal on his part. Some matters he explained in 
answers to questions from the judges and the Attorney- 
General. 

Stanford then read the confession of Cuthbert Vaughan, 
which, if true, proved that Throckmorton had given Vaughan 
much information as to the designs of Wyat's confederates. 
The Attorney-General offered to produce Vaughan to swear 
to his confession. To which Throckmorton replied, '' He that 
" hath said and lied will not, beiog in this case " {i.e., under 
sentence of death), '' stick to swear and lie." Vaughan, how- 
ever, was called, swore to the truth of his confession, and, in 
answer to a question from Throckmorton, said he was only a 
common acquaintance, and that Wyat had given him a letter 
of introduction to Throckmorton. Upon this Throckmorton 
said, " If you have done with Vaughan, my lord, I pray you 
*'give me leave to answer." The Chief Justice repUed, 
" Speak, and be short." Throckmorton thereupon insisted 
on the improbability of his placing so much confidence in a 
common acquaintance, and appealed to Sir R. Southwell (one 
of the Commissioners by whom he was tried, and before 
whom, as a Privy Councillor, Vaughan had been examined) 
to confirm him in saying that Vaughan had varied in his 
evidence, and in particular that he had vouched a witness 
who had not been examined and a document which had 
never been produced. He also insisted that Vaughan ought 
not to be believed, because his only hope of escape from his 

in these days, would take precedence of the law oflicers. In mo8t of the 
cases referred to the Prime Serjeant is leading counsol for the prosecution. 



328 



THROCKMORTON S CASE. 



Chap. XI. own sentence of death was to accuse some one else. The 
judges hereupon asked if he meant to say that Vaughan'sl 
deposition was totally false. Thereupon Throckmorton] 
admitted that much of it was true ; but he denied the 
specially damaging parts of it, and explained a variety of 
matters which were specifically pointed out to him. Throck- 
morton's own '' confession" was then read by Stanford. It 
admitted in substance that he had discussed with several 
persons the scheme of the marriage between Queen Mary and 
Philip II., of which he and they strongly disapproved ; but it 
went no further. A deposition of the Duke of Suffolk was 
next read, on which Throckmorton remarked that it stated 
only what the ^Duke said he had heard from his brother. Lord 
Thomas Grey, who " neither hath said, can say, nor will say 
" anything against me." Certain statements, very remotely 
connected with the subject, made by one Arnold, were then 
referred to. They mentioned a man named FitzWilliams. 
Throckmorton, seeing FitzWilliams in court, desired that he 
might be sworn as a witness. FitzWilliams offered himself 
to be sworn, but, upon the Attorney- General's application, the 
Court refused to hear him, and ordered him out, one of the 
judges saying, " Perad venture you would not be so ready in a 
" good cause." Finally it was said that Wyat had " grievously 
" accused " the prisoner, to which Throckmorton replied, 
" Whatsoever Wyat hath said of me in hope of his life, he 
"unsaid it at his death." One of the judges owned this, but 
added that Wyat said that all he had written and con- 
fessed to the Council was true. Throckmorton replied, 
" Master Wyat said not so. That was Master Doctor's 
" addition." On this another Commissioner observed that 
Throckmorton had good intelligence. He answered, •' God 
" provided that revelation for me this day, since I came hither ; 
'' for I have been in close prison these fifty-eight days, where 
" I heard nothing but what the birds told me which did fly 
" over my head," — an assertion which was probably false. 
After this Throckmorton objected, that his case was not 
brought within 25 Edw. 3, as no overt act of compassing the 
Queen's death was proved against him ; but at the most, pro- 
curement by words only of levying war. The judges put 



THKOCKMORTON S CASE, 329 

various difficulties in his way, refusing to have the statutes Chap. XI. 
read, and, -^in at least one instance, misconstruing their 
language grossly when Throckmorton quoted them. They 
held however, certainly in accordance with all later 
authorities, that in treason there are no accessories, 
all being principals. Nothing can exceed the energy, in- 
genuity, presence of mind, and vigour of memory which 
Throckmorton showed, or is reported to have shown, through- 
out every part of the case, and especially in the legal argu- 
ment. The Attorney-General is reported to have appealed 
to the Court for protection. " I pray you, my lords that be 
" the Queen's Commissioners, suffer not the prisoner to use 
" the Queen's learned counsel thus. I was never interrupted 
" thus in my life, nor I never knew any thus suffered to talk 
" as this prisoner is suffered. Some of us will come no more 
** to the bar, an we be thus handled." 

The Chief Justice summed up, *' and," says the reporter 
(who, no doubt, was very favourable to Throckmorton), 
'' either for want of good memory or good will, the prisoner's 
" answers were in part not recited, whereupon the prisoner 
" craved indifferency, and did help the judge's old memory 
" with his own recital." After the summing up, Throck- 
morton made to the jury a short, earnest, pathetic address, 
full of texts. He begged the Court to order that no one, 
and in particular none " of the Queen's learned counsel be 
" suffered to repair to them." Whereupon two Serjeants 
were sworn to attend them for that purpose. After a deliber- 
ation of two hours the jury acquitted him. They were com- 
mitted to prison for their verdict, and eight of them (four 
having submitted and apologised) were brought before the 
Star Chamber in October (six months and more after the trial), 
and discharged on the payment by way of fine of £220 apiece, 
and three, who were not worth so much, of £G0 apiece. 
" This rigour was fatal to Sir John Throckmorton, who was 
" found guilty upon the same evidence on which his brother 
" had been acquitted." 

1 "Proveably attainted by open deed hy people of like coidition.*' People 
of like condition, according to Bromlcv, C.J. , moans "your accomplicps in 
** treason — traitors like yourself" — which Throckmorton naturally called "a 
" very strange and singular understanding." 



^^O DUKE OF NOKFOLK's CASE. 

CHAr, XL The next trial to which I will refer is that of ^ the Duke of 
Norfolk in 1571. He was tried for high treason by imagining 
the death and deposition of Queen Elizabeth ; the overt act- 
being an endeavour to marry Mary, Queen of Scots, knowing 
that she claimed title to the Crown as against Queen Eliza- 
beth. He was also charged with being concerned in various 
other treasonable enterprises, which are set out at great length 
in the indictment. The case was tried before the Court of 
the Lord High Steward, consisting of twenty-six Lords Triers. 
The proceedings, though not so animated as those in Throck- 
morton's case, followed much the same course. Serjeant 
Barham conducted the greater part of the prosecution. 
After opening the case, he urged the Duke to confess that he 
knew that Mary claimed the crown of England. He ad- 
mitted that he knew it, ''but with circumstance," that is,, 
subject to explanation. Barham contested the value of the 
explanation, and many depositions were read, on the bearing 
of which the Duke on the one side, and Barham on the 
other, argued, questioned each other, and exchanged expla- 
nations at great length. Here is a single specimen : — 

" Serjeant : Now for the matter of taking the Tower. 
"Duke: I deny it. Serjeant: Was it not mentioned unto 
''you in the way when you came from Titchfield, by one that 
" came to you and moved you a device between you and 
" another for taking the Tower ? Duke : I have confessed 
" that such a motion was made to me, but I never assented 
" to it. Serjeant : You concealed it ; and to what end 
" should you have taken the Tower but to have held it against 
" the Queen by force ? " &c. 

After Barham had finished the part of the case which he 
was to manage, other charges were enforced in the same way 
by the Attorney-General, and others again by the Solicitor- 
General. After which " Mr. Wilbraham, the Attorney of 
" the Wards," made a speech ending with a burst of patriotic 
eloquence as to how under circumstances the English would 
have beaten certain Walloons. On this the reporter observes^ 
" This point Mr. Attorney spoke with such a grace, such 
*' cheerfulness of heart and voice, as if he had been ready to 
1 1 St. Tr. 957—1042, 



OTHER CASES UNDER ELIZABETH. 33 1 

" be one at the doing of it, like a hearty true Englishman, a Chap. xi, 

'' good Christian, a good subject, a man enough for his 

" religion, prince, and country." After this Wilbraham, like 
his leaders, had an argument at length with the prisoner, who 
was thus expected to deal successively with no less than 
four eminent counsel. 

Some of the Duke's observations throw much light 
on the position of a prisoner in those days. At one point 
he said, " There is too much for me to answer without book ; 
" for my memory is not so good to run through everything, 
'' as they do that have their books and notes lying before 
" them. Therefore, I pray you, if I forget to answer to any- 
'' thing, remind me of it." The Duke, like Throckmorton, 
argued with much reason that no overt act of compassing 
the Queen's death had been proved against him, and quoted 
some authorities, and in particular Bracton. The Attorney- 
General was indignant at his audacity. " You complained 
" of your close keeping that you had no books to provide for 
'' your answer : it seemeth you have had books and counsel ; 
"you allege books, statutes, and Bracton. I am sure the 
"study of such books is not your profession." The Duke 
humbly said, " I have been in trouble these two years ; think 
" you that in all this time I have not had cause to look for 
" myself? " The Duke was convicted and executed. 

Many other trials in Queen Elizabeth's time were con- 
ducted in the same way, I may mention those of ^ Cam- 
pion and other Jesuits in 1581, those of ^Abington and 
others in 1586, that of ^Lord Arundel in 1589, and a 
very remarkable one of * Udale, for felony in writing the 
libel called Martin Marprelate in 1590. In Udale's case 
there was really no evidence, or hardly anything which 
could by courtesy be called evidence, except the fact that 
when examined before the Privy Council he would not deny 
having written the book; and that when the judge who 
tried him offered to direct an acquittal if he would only 
say he did not write it, he refused to do so. 

Under James I. the character of the procedure remained 

^ 1 fit. Tr. 1049—1088. ^ //,_ lUi— 1162. » lb, 1258. 
* Ih. 1271—1816. 



332 CASE OF ELWES. 

Chap. XI. unchanged, as may be seen by reference to the cases of 
1 Raleigh in 1603, the trials for the ^ Gunpowder Plot in 
1606, and those of ^ Overbury's murderers in 1615. 
The trials of ^ Lord Somerset and ^ Sir Jervase Elwes 
are perhaps the best illustrations of the old procedure. 
Each affords a striking instance of the importance which 
then attached to the examination of the prisoner. ^The 
argument between Lord Somerset and the different counsel 
and members of the court is exceedingly curious and minute, 
but its effect cannot be given shortly. Elwes, who was 
Lieutenant of the Tower, and had delivered the Countess of 
Somerset's poisons to Overbury, defended himself on the 
ground that he did not know what they were, though he 
admitted that he knew that at one time one of the subordinate 
agents had thoughts of committing the crime. ''He de- 
fended himself with so much energy and skill that he might 
perhaps have escaped had not Coke, the presiding judge, 
cross-examined him as to some expressions in his letters 
which he was unable to explain, ^ and (which is even more 
at variance with our modern views) produced against him, 
after his defence had been made, a " confession " by one 
Franklin, who had made the confession privately and not 
even upon oath before Coke himself, at five o'clock that 
morning, before the court sat. The " confession," if true, no 
doubt proved Elwes' s guilt beyond all doubt, but put upon 
him as it was at the very last moment, when he had no 
opportunity to inquire about it, or even to cross-examine 
Franklin without inquiry, it is not surprising that " he knew 
'' not what to answer." If Elwes's dying speech is rightly 
reported, he confessed his guilt at the gallows, and, with- 
out making any complaint on the subject, ascribed its 
discovery to Coke. ^ '' I displeased God, being transported 
" with over-much pride of my pen ; which obsequious quill 
" of mine procured my just overthrow upon the knitting of 
*' my Lord Chief Justice's speech at my arraignment, by 
** reason of two or three passages at the bottom of my 



1 2 St. Tr. 1—60. 


2 Ih. 159—359. 


3 Ih, 911—1022. 


4 Ih. 965—1022. 


s Ih. 936. 


« Ih. 992—994. 


"^ Ih. 939—940. 


s Ih. 941. 


9 Ih. 946. 



KALEIGHS CASE. ^^^ 

"letter subscribed with my own band, which I utterly had Chap. XI. 
" forgotten, because I felt not my sin." 

Of all the trials which I have mentioned, however, that 
of Raleigh is by far the most remarkable. He was accused 
of treason by conspiring with Lord Cobham to make 
Arabella Stuart Queen of England through the agency of 
the Archduke of Austria and his ambassador. The whole 
evidence against Raleigh was a *' confession" or examination 
of Cobham before the Privy Council, and a letter which he 
wrote afterwards. Both in the confession and in the letter, 
Cobham charged Raleigh with this plot by obscure allusions 
and implications, and with no details. Some few trifling bits 
of hearsay were proved, I suppose by way of corroboration. 
For instance, ^ Dyer, a pilot, swore that he accidentally met 
some one in Lisbon, who said that Cobham and Raleigh 
would cut King James's throat before he could be crowned. 
The extreme weakness of the evidence was made up for by 
the rancorous ferocity of Coke, who reviled and insulted 
Raleigh in a manner never imitated, so far as I know, before 
or since in any English court of justice, except perhaps in 
those in which Jefferies presided.^ The trial is extremely 
curious, but its great interest in a legal point of view lies 
in the discussion which occupied most of it on Raleigh's 
right to have Cobham called as a witness. He knew that 
Cobham had retracted his confession, and he had actually 
received from him a letter saying, " I protest upon my salva- 
*' tion I never practised with Spain by your procurement. 
" God so comfort me in this my affliction as you are a good 
" subject, for anything I know." For these reasons, and also 

1 2 St. Tr. 25. 

2 lb. 26: — *^ Att.: Thou art the most vile and execrable traitor that 
" ever lived, lialeigh : You speak indiscreetly, barbarously, and uncivilly. 
" AtL : I want words sufficient to express thy viperous treasons. Raleigh: 
** I think you want words, indeed, for you have spoken one thing half a dozen 
" times. Alt. .• Thou art an odious fellow. Thy name is hateful to all the 
" realm of England for thy pride, llalei'jh : It will go hard to ])rove ameasur- 
*' ing cast between you and me, Mr. Attorney. Att. : Well I will now make 
** it appear tliat there never lived a viler viper upon the face of the earth 
*• than thou." In the case of Wraynham before the Star Chamber for slander- 
ing fiOrd Bacon, Coke said, "Take this from me, that what grief soever 
" a man hath, ill words work no good, nnd hjarned counsel never use theni." 
— 2 St. Tr. 1073. As to Italeigh's trial viewed historically, see (Jardiner'a 
Hist, of Eng. i. 93-109. 



334 Raleigh's case. 

Chap. XI. because as he said he felt sure that Cobham would not 
venture to state openly and on oath what he had confessed 
before the Council, Ealeigh earnestly pressed for his pro- 
duction. He put his demand partly on two statutes of 
Edward VI. (1 Edw. 6, c. 12, s. 22, and 5 & 6 Edw. 6, 
•c. 11, s. 11). The first act provides that no one is to be 
indicted, arraigned, or convicted of treason unless he be 
accused by two sufficient and lawful witnesses. The second 
act is to the same effect, but uses the words "lawful 
^'accusers," which ^Coke himself afterwards interpreted as 
meaning witnesses, " for other accusers have we none in 
*' the common law." It also provides that the accusers 
shall, at the time of the arraignment, be brought in 
person before the accused. Of these statutes Coke de- 
clares that they were grounded on the common law, 
which " herein is grounded . upon the law of God, expressed 
" both in the Old and New Testament ' in ore duorum vel 
" ' trium testium,' &c." ^ In Raleigh's trial, Coke insinuated 
that these statutes were no longer in force, and ^ Chief 
Justice Popham expressly said that they were repealed, 
adding, " It sufficeth now if there be proofs made either 
" under hand or by testimony of witnesses, or by oaths." As 
for having Cobham produced in court, Lord Salisbury (Robert 
Cecil) said that the commissioners ought to know from the 
judges whether Raleigh had aright to demand his production, 
or whether it was matter of favour ? Upon this the follow- 
ing remarkable statements were made : — 

* " Lord Chief Justice : This thing cannot be granted, for 
" then a number of treasons should flourish : the answer 
'' may be drawn by practice whilst he is in person. Justice 
" Gawdy : The statute you speak of concerning two wit- 
" nesses in case of treason is found to be inconvenient ; 
"' therefore by another law it was taken away. Baleigh : 
'' The common trial of England is by jury and witnesses. 
^' Lord Chief Justice : No, by examination : if three con- 
" spire a treason and they all confess it, there is never a 
*' witness, yet they are condemned. Justice Warhurton : 
*' I marvel. Sir Walter, that you, being of such experience 
1 Srd Inst. 25—26. ^ 2 St. Tr. 14. ^ /j, 15. 4 j^^ ig. 



Raleigh's case — rules of evidence. 335 

"' and wit, should stand on this point : for so many horse- Chap. XI. 

^' stealers may escape, if they may not be condemned without 

'' witnesses. If one should rush into the king's privy chamber 

" whilst he is alone and kill the king (which God forbid), and 

'' this man be met coming with his sword drawn all bloody, 

" shall not he be condemned to death ? My Lord Cobham 

" hath perhaps been laboured in that, and to save you, his old 

'' friend, it may be that he will deny all that he hath said ? " 

The result was that Cobham was not produced, and that 
Baleigh was convicted and executed on the 29th October, 
1618, just fifteen years after his trial. The avowed reason 
for keeping back Cobham was that, if called, he would have 
withdrawn what he had said. It is right, however, to observe 
that in the letter which he wrote he made one charge against 
Raleigh which may probably have been true. " Raleigh," he 
said, ''was to have a pension of £1,500 a year for which he 
'" promised that no action should be against Spain, the Low 
*' Countries, or the Indies, but he would give knowledge 
" beforehand." The Chief Justice asked Raleigh what he 
said to this. Raleigh replied, " I say that Cobham is a base, 
" dishonourable, poor soul ; " and he then produced the letter 
already quoted, in which Cobham withdrew all his accusations. 
He did not, however, deny the charge about the pension. 

Of Coke's share in this matter nothing need be said 
except that it was infamous; but the observations of the 
judges as to the right of the prisoner to have the witness 
produced before him face to face, and their assertion that the 
statutes of Edward VI. had been repealed, and that the trial 
at common law was by examination and not by a jury and 
witnesses, are extremely curious. That the judges of that 
time were subservient to the Crown must be admitted ; 
that they would venture to put forward as undoubted 
law and ordinary practice that for which there was no sort 
of colour of law is most improbable. The explanation 
which I should be inclined to put upon the opinions just 
quoted is as follows. The meaning of the assertion that 
the statutes of Edward VI. had been repealed was, that by a 
statute of Philip and Mary (1 & 2 Phil. & Mary, c. 10) it 
was enacted that for the future all trials for treason " shall 



33^ TRIAL BY EXAMINATION AND BY WITNESSES. 

Chap. XI. " be had and used only according to the due order and course 
" of the common law." The statutes requiring two witnesses 
in treason were regarded as an innovation upon the common 
law, and were thus considered as being repealed implicitly by 
the Act of Philip and Mary. The rule as to the two witnesses 
seems to have been construed as referring to the trial by wit- 
nesses as it existed under the civil law, which seems to have 
been regarded in England as a trial in which two eye or 
ear-witnesses to the fact constituting the 'crime itself were 
required — a condition so difficult of fulfilment that it was 
in practice supplemented by torture, a confession so ob- 
tained being regarded as sufficient for a conviction. With 
this trial by witnesses trial by jury was frequently contrasted 
(as, for instance, by ^ Fortescue, De Laudihus Legum Anglice) ; 
and the opinion seems to have prevailed that if a trial by 
witnesses according to all the rigour attributed to the civil 
law was not to be insisted upon, the only alternative was that 
the jury should form their opinion as they could, whether 
upon their own knowledge or upon any sort of materials 
which might be supplied to them, of which materials the 
examination of the accused would probably be the commonest 
and most natural. It should be observed that the remarks 
of the judges, and especially the illustration given by Judge 
Warburton as to a murder being proved by the fact that the 
prisoner was seen with a bloody sword in his hand leaving 
the room where the murder was committed immediately 
after the crime, show that the judges of that day recognised 
no distinction between different kinds of evidence, except the 
distinction between the evidence of an eye-witness to the 
actual crime and everything else. They seem to have 
thought that if the evidence of two such eye-witnesses was 
dispensed with, no other line could be drawn. There was no 
reason why the most remote and insignificant hearsay should 
not be admitted even as to the contents of written docu- 
ments, or why the prisoner should not be convicted solely 
on the impression derived by the jury from the way in which 
he sustained his examination. The only rules of evidence as 

1 Chapters xxi.— xxvii. pp. 37 — 60 ; and see 28 Hen. 8, c. 15. As to 
the trial of pirates, post, Yol. U. p. 18. 



THE STAR CHAMBER PROCEDURE. 337 

to matters of fact recognised in the sixteenth century seem Chap. XI. 
to have been the clumsy rules of the mediaeval civil law, 
which were supposed to be based on the Bible. If they were 
set aside, the jury were practically absolute, and might decide 
upon anything which they thought fit to consider evidence. 
On the other hand, as the prisoner had no counsel, no books 
no means of procuring evidence, and no right to give it if he 
did procure it, the jury were practically in the hands of the 
court, especially as there was a possibility (as Throck- 
morton's case showed) of their being fined if they gave an 
unwelcome verdict." 

Before leaving these trials I may make an observation on 
the judges. Most of the trials to which I have referred were 
before Commissioners of Oyer and Terminer. Such com- 
missions are still addressed not only to the judges who are to 
go on circuit and to the Queen's Counsel who on occasion 
sit for them, but also to a number of distinguished persons 
who are probably not aware that they are included in the 
commission. This is a mere relic of what was once an im- 
portant matter. In the sixteenth century the lay commis- 
sioners took a prominent part in the trials. In Raleigh's 
case, for instance, there were eleven commissioners, of whom 
four were judges and seven laymen. Lord Salisbury (Robert 
Cecil) and Lord Henry Howard, especially the former, took a 
prominent part in the trial. ^ Cecil in particular got into a 
dispute with Coke, who " sat down in a chafe, and would speak 
*' no more until the Commissioners urged and entreated him." 

I now pass from the proceedings before the Courts of 
Common Law to those which took place before the Star 
Chamber. 

I have already given some account of the history and of 
the jurisdiction of that court, I will now notice some of the 
cases which led to its abolition. Its function as a criminal 
court was to try cases of misdemeanour which were not, or 
were supposed not to be, sufficiently recognised or punished 
at the common law. Its procedure was founded upon an in- 
formation, generally by the Attorney-General, wlio drew up 
a charge like a Bill in Chancery against the defendant. The 

^ Gommonwealth of J^land, 212. •2 St. Tr. 26. 

VOL. I. Z 



j2>^ kemarks on star chamber cases. 

Chap. XI. defendant put in his answer also in the form of an Answer in 
Chancery. He might be examined upon interrogatories, and 
was liable to be required to take what was called the ex officio 
oath. This was an oath in use in the Ecclesiastical Courts, by 
which the person who took it swore to make true answer to 
all such questions as should be demanded of him. The evi- 
dence of witnesses was given upon affidavit. When the case 
was ripe for hearing it came on for argument much in the 
way in which cases are argued in the Chancery Division of the 
High Court, The parties appeared by counsel ; the informa- 
tion, answer, and depositions were read and commented upon ; 
and finally each member of the court pronounced his opinion 
and gave his judgment separately — a point worth noticing 
because it stands in marked contrast to the practice of the 
modern Judicial Committee of the Privy Council, which in a 
certain sense represents the Star Chamber. 

The Star Chamber proceedings reported in the State Trials 
leave a singular impression on my mind. As far as the 
mere management in court of the different cases went, it 
cannot be denied that they are for the most part calm and 
dignified, though the strange taste and violent passions of 
- the time give them occasionally a grotesque appearance ; but 
the severity of the ''censures" or sentences is in these days 
astonishing. A few instances may be mentioned. In 1615 
^ Sir John Hollis and Sir John Wentworth were prosecuted 
" for traducing the public justice." Weston had been hanged 
for the murder of Sir Thomas Overbury, to whom he had 
administered poison. Wentworth and Hollis went to 
Weston's execution, where Wentworth asked Weston whether 
he really did poison Overbury, and pressed him to answer, 
''saying he desired to know, that he might pray with him." 
Hollis " was not so much of a questioner," but, "like a kind 
" of confessor, wished him to discharge his conscience and 
" satisfy the world." Hollis moreover, when the jury gave 
their verdict, said, "If he were on the jury, he would 
" doubt what to do." It is difficult to see how this could 
be regarded as in any sense criminal conduct ; but it 
seems to have been thought that Wentworth's question 
1 2 St. Tr. 1022. 



HOLLIS'S CASE — SHERFIELD's CASE. 339 

and Hollis's remarks remotely implied that Weston's guilt Chap. XI. 

might perhaps be not absolutely certain, notwithstand- 

ing his conviction. Lord Bacon (then Attorney-General) 

developed this view of the subject at length, and with 

characteristic grace, calmness, and power. The defendants 

excused themselves in a polite manner ; Sir John Hollis 

observing that "Mr. Attorney had so well applied his 

" charge against him that, though he carried the seal of a 

"' good conscience with him, he would almost make him 

•' believe he was guilty." As for what he had said to Weston, 

he was there " carried with a general desire which he had to 

" be at the execution as he had done in many like cases 

" before." It was a common thing on such occasions to 

question the person about to be executed, and he had only 

followed his usual practice. Coke pronounced sentence. He 

referred to Abimelech, to cases of poisoning in the Year-books, 

as to which he remarked that "from Edward III. to 22 

" Henry VII. (which was a great lump of time) no mention 

'' is made of poisoning any man." As to going to executions, 

he said that *' ever since he was a scholar and had read those 

" verses of ^ Ovid, Trist. iii. 5, ' Ut lupus et vulpes instant mori- 

'' ' entibus et qusecumque minor nobilitate fera est,' he did 

" never like it, and he did marvel much at the use of Sir 

John," to whom he applied, " with a little alteration," Virgil's 

line, " Et quae tanta fuit Tyburn tibi causa videndi." 

Finally by way of " censure " Sir John Hollis was fined 

£1,000 and Sir John Wentworth 1,000 marks, and each 

was imprisoned a year in the Tower. 

^In 1682 Mr. Sherfield was prosecuted before the Star 
Chamber for breaking a glass window in St, Edmond's Church 
in Salisbury. He admitted that he had done so, but justified his 
conduct on the ground that the window " was not a true re- 
' ' presentation of the Creation ; for that it contained divers 
" forms of little old men in bJue and red coats, and naked in 
" the head, feet, and hands, for the picture of God the Father, 
" and the seventh day he therein hath represented the like 

' Tristia, iii. 5, 36, 36. The first lino is both incorrect and inipcrffct 
It is " Ut lupus ct turpcs instant nioricntibus ursi." 
2 3 St. Tr. 519. 



340 Chambers's case — peynne's case. 

Chap. XI. *' image of God sitting down taking his rest, whereas the 
''defendant conceiveth this to be false." The window con- 
tained many other inaccuracies. Eve, for instance, was repre- 
sented as being taken whole out of Adam's side, whereas in fact 
a rib was taken and made into Eve. Besides, as to the days, 
" he placed them preposterously, the fourth before the third, 
" and that to be done on the fifth, which was done on the sixth 
" day." For these reasons the defendant made eleven holes 
in the window with his pikestaff, and, said one of the witnesses, 
'* the staff broke and he fell down into the seat and lay 
** there a quarter of an hour groaning." For this, after a 
long and decorous discussion, Sherfield was fined £500. 

1 Mr. Richard Chambers, a merchant of London, who had a 
dispute with some under officers at the Custom House, was 
summoned before the Privy Council at Hampton Court, where 
he said to the Council, " that the merchants are in no part of 
" the world so screwed and wrung as in England ; that in 
" Turkey they have more encouragement." For this little 
bit of grumbling, directed solely against under officers, he 
was fined £2,000, and required to make a written sub- 
mission or apology, which he refused to do. For his refusal 
he was imprisoned for six years. 

These proceedings, were sufficiently severe, but those which 
made the Court utterly intolerable and brought about its 
abolition were the sentences upon libellers, and the proceed- 
ings connected with them. The best known of these may be 
shortly noticed. 

^ In 1632 William Prynne was informed against for his 
book called Histrio Mastix. Prynne's answer was, amongst 
other things, that his book had been licensed, and one of the 
counsel, Mr. Holbourn, apologised, not without good cause, 
for his style. ^"For the manner of his writing he is 
*' heartily sorry, that his style is so bitter, and his impu- 
" tations so unlimited and general." The book certainly 
was a bitter and outrageous performance, and it is probable 
that a moderate sentence upon the author would, at the time, 
have been approved. His trial was, like the other Star 
Chamber proceedings, perfectly decent and quiet, but the 
1 3 St. Tt. 373. 2 xh. 661. 3 i^^ 572. 



I 



PKYNNE, BASTWICK, AND BURTON. 341 

sentence can be described only as monstrous. He was sen- Chap. XL 
tenced to be disbarred and deprived of his university degrees ; ^ 

to stand twice in the pillory, and to have one ear cut off each 
time ; to be fined £5,000 ; and to be perpetually imprisoned, 
without books, pen, ink, or paper. One of the Court, ^ Lord 
Dorset, was as brutal in his judgment as Prynne in his book. 
" I should be loth he should escape with his ears, for he may 
** get a periwig which he now so much inveighs against, and 
'* so hide them, or force his conscience to make use of his un- 
" lovely love-locks on both sides ; therefore I would have 
" him branded in the forehead, slit in the nose, and his ears 
*' cropt too." 

Five years after this, in 1637, Prynne, Bastwick, and 
Burton, were tried for libel, and were all sentenced to the 
same punishment as Prynne had received in 1632, Prynne 
being branded on the cheeks instead of losing his ears. 

The procedure in this case appears to me to have been as 
harsh as the sentence was severe, though I do not think 
it has been so much noticed. In cases of treason and felony 
no counsel were allowed to prisoners in the sixteenth and 
seventeenth centuries, indeed in cases of felony they were 
not allowed to address the jury for the prisoner till 1837. 
The rule was otherwise in misdemeanours, and by the prac- 
tice of the Star Chamber defendants were not only allowed 
counsel, but were required to get their answers signed 
by counsel. The effect of this rule, and probably its object 
was, that no defence could be put before the Court which 
counsel would not take the responsibility of signing — a 
responsibility which, at that time, was extremely serious. 
If counsel would not sign the defendant's answer he was 
taken to have confessed the information. Prynne's answer 
was of such a character that one of the counsel assigned to 
him refused to sign it at all, and the other did not sign it till 
after the proper time. Bastwick could get no one to sign 
his answer. Burton's answer was signed by counsel, but was 
set aside as impertinent. Upon the whole, the case was taken 
to be admitted by all the three, and judgment was passed on 
them accordingly. There is something specially repugnant 

1 3 ,SY. Tr. 585. 



342 THE EX OFFICIO OATH. 

Chap. XI. to justice in using rules of practice in such a manner as to 
debar a prisoner from defending himself, especially when the 
professed object of the rules so used is to provide for his de- 
fence. It ought, however, in fairness to be admitted that the 
course taken made no practical difference to the defendants, 
as they neither could, nor did they wish to deny that they 
were the authors of the books imputed to them, and the books 
spoke for themselves. They were asked at the final hearing 
whether they pleaded guilty or not guilty, although the Court 
took the matter of the information as admitted. I suppose 
this was to give them an opportunity of disavowing the 
publication, if they were so minded, but this is only a 
conjecture. 

The last Star Chamber case to which I will refer is notice- 
able, amongst other reasons, because it illustrates the intense 
unpopularity of one of the principal points in the procedure, 
both of the Star Chamber and of the Ecclesiastical Courts, from 
which, the Star Chamber probably borrowed it. This was 
what was known as the ex officio oath, already mentioned. 
In the Common Law Courts ^ this oath is still in constant use 
without objection, in interlocutory proceedings, but in the old 
Ecclesiastical Courts and in the Star Chamber it was under- 
stood to be, and was, used as an oath to speak the truth on the 
matters objected against the defendant — an oath, in short 
to accuse oneself. It was vehemently contended by those who 
found themselves pressed by this oath that it was against the 
law of God, and the law of nature, and that the maxim " nemo 
" tenetuT prodere seipsum " was agreeable to the law of God, and 
part of the law of nature. In this, I think, as in most other 
discussions of the kind, the real truth was that those who 
disliked the oath had usually done the things of which they 
were accused, and which they regarded as meritorious actions, 
though their judges regarded them as crimes. People always 
protest with passionate eagerness against being deprived 
. of technical defences against what they regard as bad 
laws, and such complaints often give a spurious value to 
technicalities when the cruelty of the laws against which 

^ Under the name of the *',voir" (vrai) "dire." "You shall true answer 
** make to all such questions as shall be demanded of you." 



I 



JOHN lilbukn's "case. 343 

they have afiforded protection has come to be commonly Chap. xi. 
admitted. 

Be this as it may, the extreme unpopularity of the ex officio 
oath is set in a clear light by the case of John Lilburn. Lil- 
burn wrote an account of the proceedings against him which 
is probably substantially accurate and is extremely lively and 
circumstantial. ' He was committed to the Gatehouse '' for 
" sending of factious and seditious libels out of Holland into 
" England." He was afterwards ordered by the Privy 
Council to be examined before the Attorney-General, Sir 
John Banks. He was accordingly taken to the Attorney- 
General's chambers, ^ " and was referred to be examined by 
" Mr. Cockshey his chief clerk ; and at our first meeting 
" together he did kindly entreat me, and made me sit down by 
" him, put on my hat, and began with me after this manner. 
" Mr. Lilburn, what is your Christian name ? " A number of 
questions followed, gradually leading up to the matter com- 
plained of. Lilburn answered a good many of them, but at 
last refused to go further, saying, '' I know it is warrantable 
" by the law of God, and I think by the law of the land, that 
" I may stand on my just defence, and not answer your inter- 
'•' rogatories, and that my accusers ought to be brought face 
" to face, to justify what they accuse me of." He was after- 
wards asked by the Attorney-General to sign his examination, 
but refused to do so, though he offered to write an answer of 
his own to what might be alleged against him. ^ Some days 
after he was taken to the Star Chamber office that he might 
enter his appearance. He replied that he had been served 
with no subpoena, and that no bill had been drawn against him. 
" One of the clerks said I must first be examined and then 
" Sir John" (the Attorney-General) ''would make the bill." 
Lilburn thought the object of the examination was to get 
materials for a bill, and accordingly when the head of the 
office tendered him the oath " that you shall make true answer 
" to all things that are asked you," he refused to do so, say- 
ing, first, " I am but a young man and do not well know what 
" belongs to the nature of an oath." Afterwards he said ho 
was not satisfied of the lawfulness of that oath, and after 
1 3 St. Tr. 1315—1368. « lb. 1317. =* lb. 1320. 



344 JOHN lilburn's case. 

Chap. XI. much dispute absolutely refused to take it. After about a 
fortnight's delay he was brought before the Star Chamber, 
where the oath was again tendered to him and he again 
refused it on the gronnd that it was an oath of inquiry for the 
lawfulness of which he had no warrant. 'Lilburn had a 
fellow prisoner, " old Mr. Wharton," said intone part of the 
case to have been eighty-five years of age. When asked 
to take the oath Wharton refused, and began to tell them 
of the bishops' cruelty towards him, and that they had 
'* had him in five several prisons within these two years for 
" refusing the oath." On the following day they were brought 
up again. Lilburn declared, on his word and at length, that 
the charges against him were entirely false, and that the 
books objected to were imported by another^person with whom 
he had no connection. ^ " Then," said the Lord Keeper, 
'* thou art a mad fellow, seeing things are thus that thou 
" wilt not take the oath and answer truly." Lilburn repeated 
that it was an oath of inquiry and that he found no warrant 
in the word of God for an oath of inquiry. " When I named 
" the word of God the Court began to laugh as though they 
'' had had nothing to do with it." Failing with Lilburn, the 
Court asked Wharton whether he would^take the oath, where- 
upon getting leave to speak, " he began to thunder it out 
*' against the bishops, and told them they required three 
" oaths of the king's subjects, namely, the oath of church- 
" wardenship, and the oath of canonical obedience, and the 
" oath ex officio, which, said he, are all against the law of 
" the land, and by which they deceive and^perjure thousands 
'* of the king's subjects in a year." "But the Lords, wonder- 
" ing to hear the old man talk after this manner, commanded 
'* him to hold his peace, and to answer them whether he would 
" take the oath or no. To which he replied, and desired 
" them to let him talk a little, and he would tell them by 
" and by. At which all the Court burst out laughing ; but 
" they would not let him go on, but commanded silence (which 
" if they would have let him proceed, he would have so pep- 
" pered the bishops as they never were in their lives in an 
" open Court of judicature)." As both absolutely refused to 
1 3 St. Tr. 1322. 2 /j^ 1325. 



COMMON CASES. 345 

take the oath they were each sentenced to stand in the Chap. XI 
pillory, and to pay a fine of £500, and Lilburn to be whipped 
from the Fleet to the pillory, which stood between Westmins- 
ter Hall Gate and the Star Chamber. Lilbarn was whipped 
accordin^jly, receiving, it was said, upwards of 500 lashes, and 
was made to stand in the pillory for two hours after his whip- 
ping. In May, 1641, the House of Commons resolved '' that the 
" sentence of the Star Chamber given against John Lilburn 
" is illegal, and against the liberty of the subject : and also 
'' bloody, cruel, barbarous, and tyrannical." 

It is difficult to say how far the cases reported in the 
State Trials can be regarded as fair specimens of the common 
course of the administration of criminal justice, as it is not 
unnatural to suppose that in cases in which the Government 
were directly interested prisoners might be treated more harshly 
than in common cases. The only report of a trial for a 
common otfence given in the State, Trials before the year 1640, 
is that of an appeal of murder tried at the King's Bench bar, 
in the 4th Charles I. (1628). The report is published in 14 
St. Tr. 1342, from the papers of Serjeant Maynard. The 
evidence given seems to have been with one strange excep- 
tion, similar to the evidence which would be given in the 
present day on a trial for murder. It was proved that one 
Jane Norkott was found lying dead in her bed in a composed 
manner, the bed clothes not disturbed, and her child in bed. 
Her throat w^as cut and her neck broken. There was no 
blood on the bed, but much at two distinct and distant places 
on the floor, and a bloody knife was found sticking in the 
floor, the point towards the bed and the haft from the bed. 
These facts clearly proved that the case was one of murder, 
and not (as was supposed at first) of suicide. Mary Norkott, 
the mother of the deceased, Agnes Okeman, her sister, and 
Okeman, her brother-in-law, deposed at the inquest that they 
slept in an outer room through which her room was entered, 
and that no stranger came in in the night. Upon this singu- 
larly weak evidence they were suspected of murder, though a 
coroner's jury at first returned a verdict oi fdo dc se. After 
thirty days the body was disinterred and a second inquest 
held. Probably (though that is not stated) they found a 



34^ okeman's case. 

Chap. XI. verdict of murder against the defendants, who were tried at 
Hertford assizes and acquitted. The judge, being dissatisfied 
with the verdict, recommended that the infant child should 
be made plaintiff in an appeal of murder against its father, 
grandmother, aunt, and uncle, and the appeal was tried ac- 
cordingly. On the trial it was sworn that when the body was 
disinterred at the second inquest " the four defendants were 
" required, each of them, to touch the dead body. Okeman's 
" wife fell upon her knees and prayed God to show tokens of 
" her innocency. The appellant " (sic, but as the appellant was 
a baby this seems strange ; probably it should be " appellees ") 
" did touch the dead body, whereupon the brow of the dead, 
" which before was of a livid and carrion colour, began to 
" have a dew or gentle sweat arise on it, which increased by 
" degrees till the sweat ran down in drops on the face, the 
" brow turned to a lively and fresh colour, and the deceased 
'' opened one of her eyes and shut it again ; and this opening 
" the eye was done three several times ; she likewise thrust 
" out the ring or marriage finger three times and pulled it in 
'' again, and the finger dropped blood on the grass." These 
occurrences, which I believe (some allowance being made for 
exaggeration and inaccurate observation) are not unnatural 
effects of decomposition, seem to have excited the greatest 
astonishment in Court, but Serjeant Maynard does not say 
how the j adge dealt with them in his charge or what was the 
result of the proceedings. If they are regarded as miraculous, 
they have the defect of being wholly uncertain in their 
meaning, for it is impossible to say whether they attested 
the innocence of Elizabeth Okeman or her guilt, or that of 
any, and if so of which, of the other persons concerned. 

In the absence of reports of particular trials I may refer to 
a striking description of trials in general by Sir Thomas Smith, 
Secretary of State to Queen Elizabeth, which occurs in his 
Commomvealth of England, written during the author's embassy 
to France, with special reference to the difference between 
the institutiolis of France and England, and the Common and 
the Civil Law. 

The following is. his description of a trial at the Assizes : 
1 Smith's Coinmonwealthf ch. xxv. pp. 183 — 201. 



smith's description of criminal trials. 347 

Having described the preliminary proceedings and the fixing Chap. XI. 
of the circuits he describes the Courts themselves. '* In the 
" town house or in some open common place there is a tribu- 
" nal or place of judgment made aloft. Upon the highest 
'' bench there sit the judges which be sent down in commis- 
'' sion in the midst. Next them on each side the justices of 
" the peace according to their degree. On a lower bench 
'' before them the rest of the justices of the peace and some 
*' other gentlemen or their clerks. Before these judges and 
''justices there is a table set beneath, at which sitteth the 
" custos rotulorum, or keeper of the writs, the escheator, the 
** under sheriff, and such clerks as do write. At the end 
** of that table there is a bar made with a space for the in- 
" quests, and twelve men to come in when they are called, 
'* behind that space another bar, and there stand the 
" prisoners which be brought thither by the gaoler all 
" chained together." The introductory proceedings, includ- 
ing the various proclamations and the taking of the pleas, 
the challenges and swearing of the jury, are next fully 
described. They are identically the same as those which 
now obtain, the very words of the proclamations having 
remained almost unchanged. The prisoner having pleaded 
not guilty, and the jury having been sworn, the crier " saith 
" aloud, If any can give evidence or can say anything against 
" the prisoner, let him come now, for he standeth upon his de- 
" liverance. If no man come in, then the judge asketh who 
" sent him to prison, who is commonly one of the justices of 
" the peace. He, if he be there, delivereth up the examina- 
*' tion which he took of him " (under the Acts of Philip and 
Mary), " and underneath the names of those whom he 
" hath bound to give evidence : although the malefactor hath 
*' confessed the crime to the justice of the peace, and that it 
*' appear by his hand and confirmation, the twelve men will 
*' acquit the prisoner, but they which should give evidence 
" pay their recognizances. Howbeit this doth seldom 
" chance except it be in small matters and where the justice 
" of the peace who sent the prisoner to the gaol is away." 
This curious passage gives a different impression from 
the reports of cases in the State Trials. The juries in the 



34^ smith's description of criminal trials. 

Chap. XI. cases I have referred to showed little inclination to acquit 
prisoners who had confessed or had been accused by the 
confessions of others ; but Sir Thomas Smith's account clearly 
implies that, if the witnesses did not appear, the examination 
of the prisoner was read, and he probably may (though this 
is not stated) have been further examined upon it. In such 
cases as Smith refers to, in the present day the judge would 
direct an acquittal. 

To resume Smith's account, '' If they which be bound to 
" give evidence come in, first is read the examination which 
'' the justice of the peace doth give in " (it is likely that the 
prisoner would be questioned upon it, butthisisnot mentioned), 
*' then is heard (if he be there) the man robbed, what he can 
" say, being first sworn to say the truth, and after the con- 
" stable, and as many as were at the apprehension of the 
" malefactors, and so many as can say anything being sworn 
*' one after another to say truth. These be set in such a place 
" as they may see the judges and the justices, the inquest 
" and the prisoner, and hear them and be heard of them all. 
" The judge, after they be sworn, asketh first the party robbed 
" if he know the prisoner, and biddeth him look upon him : 
" he saith Yea. The prisoner sometimes saith Nay. The 
" party pursuyvant giveth good ensignes, ve^^bi gratid, I know 
*' thee well enough ; thou robbedst me in such a place, thou 
" beatedst me, thou tookest my horse from me, and my purse ; 
"thou hadst then such a coat, and such a man in thy company. 
*' The thief will say No, and so they stand a while in alterca- 
'* tion. Then he " (I suppose the prosecutor) *' telleth all that 
" he can say : after him likewise all those who were at the ap- 
" prehension of the prisoner, or who can give any indices or 
" tokens, which we call in our language evidence against the 
" malefactor. When the judge hath heard them say enough, 
" he asketh if they can say any more. If they say No, then 
" he turneth his speech to the inquest. Goodmen (saith he), 
*' je of the inquest, ye have heard what these men say against 
" the prisoner. You have also heard what the prisoner can 
" say for himself. Have an eye to your oath and to your duty* 
" and do that which God shall put in your minds to the 
''discharge of your consciences, and mark well what is said. 



OBSERVATIONS. 349 

" Thus sometimes with one inquest is passed to the number Chap. XL 
" of two or three prisoners. For, if they should be charged 
'' with more, the inquest will say, My lord, we pray you charge 
" us with no more ; it is enough for our memory. Many 
" times they are charged with but one or two." The jury 
then retire to consider their verdicts, and are confined '^ with 
" neither bread, drink, meat, nor fire. If they be in doubt 
" of anything that is said, or would hear again some of them 
'' that gave evidence, to interrogate them more at full, or if 
■' any that can give evidence come late, it is permitted that 
" any that is sworn to say the truth may be interrogated of 
" them to inform their consciences." Finally the verdict is 
returned ; the prisoner, if found guilty, and his offence is 
clergyable, prays his clergy. If he can read he gets it. If 
not, or if his offence is not clergyable, the judge passes sen- 
tence : " Law is thou shalt return to the place from whence 
" thou camest ; from thence thou shalt go to the place of 
" execution. There thou shalt hang till thou be dead. 
" Then he saith to the sheriff, Sheriff, do execution." 

Several observations arise on this striking passage. 
Smith makes no mention of counsel ; he says nothing ex- 
plicitly of the prisoner's defence, and he seems to attach 
little or no importance to the judge's summing up. On the 
other hand, the whole account assumes that the common 
course was to call witnesses face to face, though ^ expressions 
occur which imply that depositions might be used instead ; 
on what conditions is not stated. From the account given of 
the reading of the prisoner's examination as a first step, and 
of the "altercation" between him and the prosecutor, I 
should infer that the prisoner's defence was made, not in a set 
speech as at present, but by fragments in the way of argument 
and " altercation " with the prosecutor and the other witnesses. 
This would agree with and illustrate the reports in the State 
Trials already referred to. Upon this view the only difference 

^ *' It will seem atrange to all nations that do use the Civil Law of the 
** Roman Emperors that for life and death there is nothing put in writing 
«* Imt the indictment only. All the rest is done openly in the ])resenco of the 
»* judges, the inquest, and the prisoner, and so many as will or can come 
<* so near as to hear it, and all dcpodtioivi and witnesses given aloud, that 
<* all men may hear from the mouth of the dcposUora and witnesaes wlmt is 
i* said."— P. 196. 



35^ COMPARISON BETWEEN EARLY AND MODERN TRIALS. 

Chap. XI. between the trials which are fully reported and the routine 
described by Smith would be that in the more important 
cases the examination of the prisoner would be conducted by 
counsel, whereas in less important cases it would usually consist 
of a debate between the prisoner and the prosecutor and the 
other witnesses, the judge of course interfering as he saw fit. 
Upon the whole it may be said that the criminal trials of 
the century preceding the civil war differed from those of our 
own day in the following important particulars : — 

(1) The prisoner was kept in confinement more or less 
secret till his trial, and could not prepare for his defence. He 
was examined, and his examination was taken down. 

(2) He had no notice beforehand of the evidence against 
him, and was compelled to defend himself as well as he could 
when the evidence, written or oral, was produced on his trial. 
He had no counsel either before or at the trial. 

(3) At the trial there were no rules of evidence, as we 
understand the expression. The witnesses were not neces- 
sarily (to say the very least) confronted with the prisoner, nor 
were the originals of documents required to be produced. 

(4) The confessions of accomplices were not only admitted 
against each other, but were regarded as specially cogent 
evidence. 

(5) It does not appear that the prisoner was allowed to call 
witnesses on his own behalf; but it matters little whether 
he was or not ; as he had no means of ascertaining what 
evidence they would give, or of procuring their attendance. 
In later times they were not examined on oath, if they 
were called. 

This last rule appears to us so extraordinary, that it is neces- 
sary to explain how it came about. 

1 Barrington, in his Ohservations on the Statutes, says, " The 
" denying a felon to make his defence by advocate, and the 
'' not permitting his witnesses to be examined upon oath till 
"the late statute, seem to have been borrowed from the 
''Roman law, which is indeed the more severe upon the 
" criminal as he is not permitted to produce any witnesses in 
" his favour ; and Montesquieu gives this as a reason why 
1 Observations on the Statutes, pp. 89, 90. 



NO WITNESSES FOR PRISONER. 35 ^ 

"perjury is a capital offence in France, though not in Chap. XI, 
England." ^Barrington quotes from the journals of the 
House of Commons, Thursday, June 4, 1607, a paper " de- 
' livered to and read by Mr. Speaker, declaring the manner 
' of proceeding in Scotland for point of testimony upon 
' trials in criminal cases, for satisfaction of some doubts. 

" In criminal causes by the civil law there is no jury called 
' upon life and death, and therefore the judges admit wit- 
' nesses in favour of the pursuer, but none in favour of the 
' defender, because in all cases (either criminal or civil) no man 
' can be admitted to prove the contrary of his own accusa- 
' tion, for it is his part who relevantly alleges the same to 
' prove it. As, if A accused B for breaking his stable and 
' stealing his horse such an hour of the night, the pursuer 
' may be well admitted to prove what he hath alleged ; but 

* the defendant can never be admitted to prove that he 
' was alibi at that time, for that would be contrary to 
' the libel, and therefore most unformal. In Scotland we 
' are not governed by the civil law, but ordanes (ordinaries 
' probably), and juries are to pass upon life and death much 
' the same as here, which jury, as it comes from the neigh- 
' bourhood where the fact was committed, are presumed to 
' know much of their own knowledge, and therefore they are 
' not bound to examine any witnesses except they choose to 
' do it on the part of the pursuer ; but this is not lawful to 
' be done in favour of the defendant. It is of truth the 
'judge may either privately beforehand examine ex officio 

* such witnesses as the party pursuer will offer to him ; and 
' then, when the jury is publicly called, he will cause these 
' depositions to be read, and likewise examine any witnesses 

* which the pursuer shall then desire, but never in favour of 

* the defender." 

The same subject is discussed at length in 2 Hume's 
Commentaries. "Of old,*' he says, "the panel was con- 
" fined to a very narrow and disadvantageous field by the 
" received maxim of tlie law against admitting any defence 

^ The paper is not printed in the JoumaU, but' the HouRehnd then before it 
a question as to giving Scotch courts jurisdiction over Englishmen charged 
with border offences. See Gardiner, Hist, of Eng. i. 820-82]. 

» ii. 70 (edition of 1800). 



352 OLD SCOTCH LAW ON THIS SUBJECT. 

Chap. XI. "that was contrary to the averment of the libel — a maxim 
" which sounds strange in our ears, but is taught in the 
" writings of many foreign lawyers, and seems to have 
" found reception formerly into the practice of other nations 
" as well as ours. The meaning of it was this : for instance, 
'' in a case of murder, if the libel charged that the panel 
" gave the deceased a mortal wound, of which wound he 
" languished for some days and thereof died, it was in vain 
"for the panel to allege, for he could not be allowed to 
" prove, that in truth the man died of some other ailment. 
" By the same rule, as little could the panel allege a casual 
" rencounter, or self-defence, or great and sudden provocation, 
" if the libel set forth that the slaughter was done by lying 
" in wait or on challenge to fight a single combat." 

" The sort of argument, as far as I can collect it, by which 
" our lawyers justified so strange a restriction of the panel's 
" proof, was to this purpose, that the accuser had set forth 
'* certain facts and qualities in his libel, and must establish 
" these with evidence to be used in his prosecution ; that if 
" he failed to prove them the panel must be acquitted, of 
" course, for that reason only, though there were no evidence 
" on his part at all ; and that, on the other hand, if the 
" prosecutor proved his libel, it could serve to no purpose, 
" but to occasion perjury, to admit a contrary proof on the 
" part of the panel, whose witnesses, if they contradicted 
" what had already been proved by those for the prosecution, 
" must be swearing falsely, which it was the business of the 
" Court to deny them an opportunity of doing. ' Qimndo 
" * delictum est plene prohatnm (says the commentator Baldus) 
" ' per tested affirmantes, non est admittenda contraria probatio 
" ' per testes negantes.' In like manner Sir George M'Kenzie, 
" ' To admit contrary probations,' says he, ' were to open a 
" ' door to perjury.' And much to the same purpose the 
" pleadings in cases which were actually under trial. ' This 
" ' alledgiance being direct contrair to the libel cannot be 
" ' admitted. Besides that the pursuer offering to prove the 
" ' libel as it stands, his probation, as it has the preference 
" ' to it, cannot be reargued by a contrary proof ; for seeing 
the law both of God and man has so far established 



) 



(( < 



OLD SCOTTISH LAW AS TO PRISONERS' WITNESSES. - 353 

"'the credit of two witnesses to hold their concurring Chap. XI, 
'' ' testimony undoubtedly true, there can no proof be ad- 
" ' mitted of facts contrary to the nature of those established 
" ' by their joint testimony. More especially considering 
' ' that witnesses verifying a crime against a person accused 
'' ' thereof are less to be suspected (particularly at the instance 
'' ' of the public) of partiality than any that can possibly be 
" ' adduced by the parties accused.' In short, the notion of 
" a conjunct probation of the libel and defences before the 
" assize was thought too dangerous to be admitted : the 
" prerogative of proving, and the choice of the witnesses, 
" were to be given to one of the parties only ; and on the 
" evidence taken by that party the issue was entirely to 
^' depend. To mention but one instance of so notorious a 
'' point of practice : in the case of William Sommerville, who 
'' was indicted for the murder of his mother " (in 1669), " a 
" great part of the debate turns on this point, — To whom 
" should the prerogative of probation be given ? Should 
"the prosecutor be allowed to prove that the woman died 
" of the injuries libelled, or the panel to prove that she 
" died from other causes. The Court were of opinion for the 
" prosecutor ; the defences were repelled, and the libel alone 
" was remitted to an assize." In course of time it appears an 
exception was made as to alibis, though Sir George M'Kenzie 
did not altogether like it. He thought the judges ought to 
hold a preliminary inquiry about an alibi, and dismiss the 
libel if it was proved. Thus " contrary probations " would 
be avoided, and the plan of cutting one trial into two 
" seems to be our law, and more just and Christian than 
" conjunct probations are." This strange rule was not abso- 
lutely given up in Scotland till 1735. In France the same 
practice prevailed much later. Montesquieu, in L Esprit des 
Lois (Book xxix. ch. xi.), comparing the law of France and 
England as to perjury, says, " En France Taccuse ne produit 
" point ses tcmoins, et il est tr^s rare qu'on y admette ce 
" qu'on appelle les faits justificatifs. En Angletorre Ton 
** re9oit les tcmoignages de part ot d'autre." Noticing that 
in England perjury was not, though in France it was, capitally 
piiiiishcd, and that torture was practised in the one country 
VOL. I. A A 



354 OLD FRENCH LAW AS TO PRISONERS' WITNESSES. 

Chap. XI. and not in the other, he observes that the three things qo 
together. '' La loi Frangaise ne craint pas tant d'intimider 
" les temoins ; au contraire en cas on demande qu'on les 
" intimide ; elle n'ecoute que les temoins d'une part, ce 
" sont ceux que produit la partie publique, et le destin de 
" I'accuse depend de leur seul temoignage." 

I have quoted these passages at length, not only on account 
of their curiosity, but because they seem to me to throw 
much light on the spirit of the old criminal procedure. The 
true reason for the rule as to restricting the defence is 
obvious. It increased the power of the prosecution, and 
saved trouble to those who conducted it. It was in com- 
plete harmony with the other points in which the trials of 
the sixteenth century formed a contrast to those of our own 
day. In the present day the rule that a man is presumed to 
be innocent till he is proved to be guilty is carried out in all 
its consequences. The plea of not guilty puts everything in 
issue, and the prosecutor has to prove everything that he 
alleges from the very beginning. If it be asked why an 
accused person is presumed to be innocent, I think the true 
answer is, not that the presumption is probably true, but that 
society in the present day is so much stronger than the indi- 
vidual, and is capable of inflicting so very much more harm 
on the individual than the individual as a rule can inflict 
upon society, that it can afford to be generous. It is, how- 
ever, a question of degree, varying according to time and 
place, how far this generosity can or ought to be carried. 
Particular cases may well be imagined in which guilt, instead 
of innocence, would be presumed. The mere fact that a man 
is present amongst mutineers or rebels would often be suffi- 
cient, even in our own days, to cost him his life if he could 
not prove that he was innocent. 

In judging of the trials of the period in question we must 
remember that there was no standing army, and no organised 
police on which the Government could rely ; that the mainte- 
nance of the public peace depended mainly on the life of the 
sovereign for the time being, and that the question between 
one ruler and another was a question on which the most 
momentous issues, religious, political, and social, depended. 



OBSERVATIONS ON OLD SYSTEM. 355 

111 such a state of things it was not unnatural to act on a Chap. XL 
different view as to the presumptions to be made as to guilt 
and innocence from that which guides our own proceedings. 

Suspected people, after all, are generally more or less 
guilty, and though it may be generous, for the reason already 
given, to act upon the opposite presumption, I do not see 
why a Government not strong enough to be generous should 
shut their eyes to real probabilities in favour of a fiction. 
This principle must be admitted, and the procedure of the 
period in question must be judged in the light of it, before 
it can be fairly criticised. I think such criticism would not 
be wholly unfavourable to it. The trials were short and sharp ; 
they w^ere directed to the very point at issue, and, what- 
ever disadvantages the prisoner lay under, he was allowed to 
say whatever he pleased ; his attention was pointedly called 
to ever}^ part of the case against him, and if he had a real 
answer to make he had the opportunity of bringing it out 
effectively and in detail. It was but seldom that he was 
abused or insulted. 

The general impression left on my mind by reading the 
trials is that, harsh as they appear to us in many ways, the 
real point at issue was usually presented to the jury not 
unfairly. In Raleigh's case, for instance, the substantial 
question w^as, Do you, the jury, believe that Raleigh w^as 
guilty because Cobham said so at one time, although it is 
admitted that he afterwards retracted what he said ? In 
our days such evidence would not be allowed to go before a 
jury, and, if it were^ no jury would act upon it ; ^ but it is quite 
a different question whether, in fact, Cobham did let out the 
truth in what he said against Raleigh. 

It is very questionable to me whether Throckmorton was 
not privy to Wyat's rising, and there can be no reasonable 
doubt that the Duke of Norfolk intrigued with Queen Mary 
in a manner which meant no good to Elizabeth, whether his 
conduct amounted technically to high treason or not. In a 
word, admit that the criminal law is to be regarded as the 
weapon by which a Government not very firmly established 

^ This niatt<T is fully cxaiiiined in Mr. Gardiner's History qf England^ i. 
pp. 96-108 ; 8c»' in particiiliir ])[.. l(J6-7. 

A A 2 



35^ \ OBSERVATIONS ON OLD SYSTEM. 

Chap. XT. is to defend its (Existence, admit also that a person generally 
suspected of being- disaffected probably is disaffected, and that, 
even if he has not vjone the particular matters imputed to him, 
he has probably done something else of the same sort, finally 
remember that the political contests of the sixteenth and 
seventeenth centuries ^turned upon the bitterest and the most 
deep-seated differences which exist amongst men, and that 
they appealed to the strongest of human passions, and the 
inference will be that the trials to which I have referred were 
conducted on intelligible principles, and that, the principles 
being conceded, their application was not unfair, though the 
punishments inflicted were no doubt extremely severe. 

These trials should be compared not to the English trials 
of later times, but to those which still take place under 
the Continental system. It will appear hereafter that the 
criminal procedure of modern France cannot be said to 
contrast advantageously with that of the Tudors and early 
Stuarts, so far as concerns the interests of the accused, 
and the degree in which the presumption of his innocence 
is acted upon in practice. 

Of course our modern English criminal procedure is greatly 
superior to that of our ancestors, but there is a common 
tendency to depreciate past times instead of trying to under- 
stand them. The consideration and humanity of our modern 
criminal courts for accused persons, are due in a great 
degree to the fact that the whole framework of society, and 
especially the Government in its various aspects — legislative, 
executive, and judicial, is now immeasurably stronger than it 
ever was before, and that it is accordingly possible to adjust 
the respective interests of the community and of individuals 
with an elaborate care which was formerly impracticable. 

The part of the early criminal procedure which seems to 
me to have borne most hardly on the accused was the 
secrecy of the preliminary investigation, and the fact that 
practically the accused person was prevented from preparing 
for his defence and from calling witnesses. I am by no means 
sure that the practice of examining the prisoner pointedly 
and minutely at his trial was not an advantage to him if he 
was innocent ; and I doubt whether the absence of all rules 



SECOND PERIOD, 164O — 1660. 357 

of evidence, and the habit of reading depositions instead of Chap. XI. 
having the witnesses produced in court, made so much differ- 
ence as our modern notions would lead us to believe. The 
one great essential condition of a fair trial is that the accused 
person should know what is alleged against him, and have a 
full opportunity of answering either by his own explanations 
or by calling witnesses, and for this it is necessary that he 
should have a proper time between the trial and the prepa- 
ration of the evidence for the prosecution. The manage- 
ment of the trial itself is really a matter of less importance. 
It will appear, as we go on, that the trial was improved first, 
and the preliminary procedure afterwards, and it will also 
appear that the improvement of the trial did little good 
whilst the preliminary procedure remained unaltered. 

II.— 1640— 1660. 

The trials which took place between the meeting of the 
Long Parliament and the Restoration illustrate that part of 
our history which, for obvious reasons, has aroused the strongest 
party feelings. The only matter on which I have to observe 
is the effect which it produced on the administration of 
criminal justice. With some obvious qualifications, this was 
almost wholly good. The qualifications are those which are 
inseparable from the administration of justice in a revolu- 
tionary period. The judicial proceedings of such a period 
cannot, in the nature of things, be regular, because no 
system of government can make provision for its own altera- 
tion by main force. A forcible revolution implies a new 
departure, and new institutions based upon the will of 
the successful party, and necessitates acts which involve 
a greater or less departure from legality. This was no 
doubt the case to a considerable extent in the English Civil 
Wars. In some of the impeachments which formed the 
turning-points in the struggle between the King and the 
Parliament, and particularly in the attainder of Strafford ana 
the execution of Laud, the law was, to say the least, violently 
strained. The trial and execution of Charles I. was a pro- 
ceeding which cannot be criticised at all upon strictly legal 



35^ TRIALS UNDER COMMONWEALTH. 

Chap. XI. grounds. The establishment of the High Court of Justice 
which tried not only Charles 1., but many of his adherents, 
without a jury, and sentenced them to death, was in itself a 
greater departure from the ordinary practice of English 
criminal justice than the Star Chamber. It supplies the 
only case (so far as I know) in English history in which 
judges sitting without a jury (other than the members of 
courts-martial) have been entrusted with the power of life 
and death. Nevertheless, after making every allowance on 
these points, it must be remarked that, from the year 1640 
downwards, the whole spirit and temper of the criminal 
courts, even in their most irregular and revolutionary pro- 
ceedings, appears to have been radically changed from what 
it had been in the preceding century to what it is in our own 
days. In every case, so far as I am aware, the accused per- 
son had the witnesses against him produced face to face, 
unless there was some special reason (such as sickness) to 
justify the reading of their depositions. In some cases the 
prisoner was questioned, but never to any greater extent than 
that which it is practically impossible to avoid when a man 
has to defend himself without counsel. When so ques- 
tioned, the prisoners usually refused to answer. The prisoner 
was also allowed, not only to cross-examine the witnesses 
against him if he thought fit, but also to call witnesses of his 
own. Whether or not they were examined upon oath I am 
unable to say. 

These great changes in the procedure took place appa- 
rently spontaneously, and without any legislative enactment. 
This, no doubt, favours the view that the course taken in the 
political trials of the preceding century either really was 
or else was regarded as being illegal. If they were, the word 
illegal must have been construed in a sense closely approach- 
ing to unjust or immoral. I know of no precise, clear 
authority for the proposition that a prisoner is entitled to 
have the witnesses against him examined in his presence, 
or that he is entitled to call witnesses or examine them upon 
oath till long after the Revolution ; and I have given my reasons 
for thinking that nothing of the kind was involved in the 
original institution of trial by jury, though it is probable that 



"GOOD OLD LAWS OF ENGLAND." 359 

in cases in which the Government were not directly inter- Chap. xi. 
ested, the practice may have come to prevail. Looking at 
the matter in a purely legal point of view, it is difficult to say 
that the one practice was more legal than the other ; but 
there is no doubt that the later practice was not only more 
humane, but more conducive to the discovery of truth than 
the earlier one, and in the seventeenth century this was 
enough, not only to establish its legality, but also to establish 
the fact, supposed to be essential to its legality, that it 
formed a part of the '' good old laws of England." The 
belief in a golden age of law in some indefinite past time 
has been common in this country from immemorial antiquity. 
After the Norman Conquest it was supposed to have existed 
under Edward the Confessor or King Alfred, and the halo 
which surrounded their names was afterwards transferred 
to "the common law of England," which was sometimes 
called by the more attractive title of " common right." It 
is impossible to study the proceedings of the seventeenth 
century without perceiving that the line between what was 
legal, in the strict sense of the word, and what was morally 
just was then far less strongly drawn than it is now. It was, 
indeed, impossible that it should not be so. The whole, or 
all but the whole, of the law relating to procedure was un- 
written. Coke's Third Institute was the principal authority 
as to the criminal law, and the little which he says on the 
subject is fragmentary and incomplete. Besides this, the 
whole policy of the Parliamentary party was to represent 
their proceedings as being justified by law, and that of their 
opponents as being illegal and oppressive. That the law 
itself might be oppressive was an admission which they could 
never afford to make. As far as I can foim an opinion as to 
what really Was the law, I should say that some of its 
leading principles, especially the two well-known phrases of 
Magna Charta were on their side. On many other points, 
the law, properly so called, was either absolutely silent or 
vague and uncertain. In some it may have been opposed to 
them. Their case, accordingly, was that all express law, 
which they thought just, was law in a transcendent sense ; 
that whatever they considered just, though not expressly 



3^0 LORD PRESIDENT KEBLE ON LOVE's CASE. 

Chap. XI. enacted, was also law ; and that express laws which they con- 
sidered unjust were to be explained away according to their 
views of justice. This way of looking at the subject is 
strikingly expressed by Keble, who acted as Lord President 
of the High Court of Justice at the trial of Love. ^ ''There 
" is no law in England but is as really and truly the law of 
" God as any Scripture phrase, that is by consequence from 
" the very texts of Scripture : for there are very many con- 
" sequences reasoned out of the texts of Scripture : so is the 
'' law of England the very consequence of the very Decalogue 
" itself ; and whatsoever is not consonant to Scripture in the 
" law of England is not the law of England, the very books 
" and learning of the law : whatsoever is not consonant to 
" the law of God in Scripture, or to right reason which is 
" maintained by Scripture, whatsoever is in England, be it 
" Acts of Parliament, customs, or any judicial acts of the 
" Court, it is not the law of England, but the error of the 
" party which did pronounce it ; and you, or any man else at 
" the bar, may so plead it." 

I will now give a few illustrations of the points to which I 
have referred. ^The proceedings upon the impeachment of 
Lord Strafford may stand as an example of the proceedings 
by impeachment, which were the great legal weapon of the 
Parliamentary party in their struggle. The most interesting 
questions connected with the trial I must pass over, but I 
may make a few remarks on its more technical aspects. 

Strafford was accused on the 11th November, 1640. He 
was at once committed to custody, and on the 25th Novem- 
ber twenty-eight articles of impeachment were delivered in 
against him. He delivered answers in detail to each charge, 
and each charge was heard severally and successively. The 
trial lasted from March 22nd to April 19th, when the im- 
peachment was discontinued, and the bill of attainder substi- 
tuted for it. The bill received Charles's assent on the 10th 

1 5 St. Tr. 172. The grammar of this passage is not very plain, but its 
general sense is obvious. It would be easy to multiply illustrations. 

^ There is a compressed account of the proceedings in 3 St. Tr. 1381 — 1636, 
to which I refer as being sufficiently full for my purpose. The trial itself fills 
a folio volume in Rushworth, See too Mr. Gardiner's Fall of the Monarchy, 
ii. pp. 100-180. 



steafford's impeachment. 361 

May, and Stratford was executed on the 12th. The different Chap. xi. 
charges were opened by different managers, and upon each 
charge witnesses were called, and the prisoner was heard in 
his own defence. The effect of this was that he underwent 
as many trials as there were articles in the impeachment. 
He does not appear to have been questioned directly and in 
set terms ; but such a mode of procedure practically amounted 
to questioning, and the mode of procedure by articles and 
detailed written answers to each had the same effect. 

I may here observe that the practice pursued- in Strafford's 
case of putting in a detailed answer to detailed articles of 
impeachment was followed in most cases of Parliamentary 
impeachment down to and including the impeachment of 
Lord Macclesfield in 1724. ^ On the impeachment of Warren 
Hastings an answer to each charge was put in, and the 
reading of the charges and answers occupied two days. 
Hastings's counsel, ^ however, strenuously objected to the evi- 
dence on each charge being taken, and to the defence being 
made, separately, and they carried their point. In the case of 
Lord Melville,^ the answer amounted merely to a general plea 
of not guilty, and the whole of the evidence against him was 
given before he was called upon for his defence. 

So far as the mere procedure went, the management of 
Strafford's impeachment seems to have been conspicuously 
fair, though it must not be forgotten that he was tried before 
a tribunal (the House of Lords) which was far from being 
unfavourable to him, and which was at the time extremely 
jealous of any invasion by the Commons of their privileges. 
Every fact alleged against him was made the subject of 
proof by witnesses produced in court, some of whom ^he 
successfully cross-examined. In some instances, also, rules 
of evidence were recognised and enforced. ^Thus, one of 
the charges against him was, issuing a wairant to Savile 
to quarter soldiers upon the lands and houses of certain 
persons, in order to extort money from them. An attempt 
was made to prove this by the production of a copy of the 

^ See Annual llcyistei- for 1788. 

« Mill's History of Jiritiih India, v. 57. * 29 St. Tr. 622. 

* See e.g. 3 lb. 1422. ^ lb. 1398 and 1434. 



362 STRArrORD'S ATTAINDER. 

Chap. XI. warrant. Strafford objected, alleging that the original ought 
to be produced. The Lords upheld this objection, but ad- 
mitted secondary evidence of the original in a manner which 
would not at present be considered regular. 

The most curious point in the proceedings in reference to 
evidence arose upon the notes of what was said to have 
passed at the Council Board (as taken by Sir Henry Vane 
the father). He deposed that Strafford had advised the King 
to bring over the Irish army to subdue England. No other 
person present on the occasion heard any such statement 
made, and Sir Henry Vane himself spoke with some shght 
hesitation. The original notes had been delivered up to 
Oharles I. and had been destroyed by him. It was contended 
by and for Strafford, first, that Vane was mistaken, and, next, 
that if he spoke the truth, he was only a single witness. In 
consequence of this, Pym declared that he had a copy 
privately made by young Sir Henry Vane of the notes 
made by his father at the Council, which young Vane had 
copied when entrusted by his father for another purpose 
with the keys of his papers. These notes, it was main- 
tained, when established by young Vane's evidence, would 
be equivalent to a second witness. According to our 
modern view, the utmost use to which the original notes, 
if produced, could have been put would have been to re- 
fresh the memory of the person by whom they were taken. 
The view suggested by Pym was not, however, insisted upon. 
In fact, this matter was the turning point of the trial. 
Legally, if the words were spoken, which must for ever 
remain in doubt, it seems to me that they could not upon 
any theory whatever amount to treason. 

On the substantial merits of the conduct of Parliament 
towards Strafford it is not my intention to express any 
opinion. The bill of attainder clearly shows on the one 
hand a consciousness that the prosecutors had failed to prove 
that Strafford was guilty of treason, and, on the other, a deter- 
mination to assert, or to go as near as they could to asserting, 
that he was guilty of that crime. It seems to me that the 
real question is, whether Strafford's conduct had been so 
criminal, and whether his life was so dangerous to the State, 



straffoed's case. 363 

that Parliament would have been justified in passing a bill Chap. XI. 
enacting simply, and without any recital, that he should be 
put to death. If so, the introduction into the bill of recitals 
of a doubtful character (for I cannot call them absolutely and 
unquestionably false) ought to be regarded simply as an 
attempt to disguise the harshness of the proceeding. If not, 
the proceeding itself was unjustifiable. Hallam thinks 
that the fifteenth article of the impeachment approached 
more nearly to a charge of treason than any other. 
The article charges in substance that Strafford taxed 
certain towns in Ireland in an arbitrary way, and 
caused th^ sums to be levied by quartering troops on the 
inhabitants till they paid the money. This is described as 
treason by levying of war, and also as treason under two 
Irish Acts, one of the reign of Edward III. and the other of 
the reign of Henry VI. One of these Acts (7 Hen. 6) 
provides that. " whosoever shall cess men of war in His 
"" Majesty's dominions, shall be thought to make war against 
■"the Bang," and be punished as a traitor. The Act of 
Edward III. is similar. The words of the Act of Henry YI. 
do undoubtedly cover Strafford's conduct, but each of these 
Acts appears to have been directed against the exactions and 
oppressions of private persons, and not against the oppres- 
sive execution of legal process by public authority ; and 
Lord Strafford showed that it had been a common practice 
with his predecessors to levy taxes and enforce the execution 
of judgments as he had done. Besides this, it was very 
doubtful whether the Acts in question had not been repealed. 
^ Hallam lays little stress upon the Irish Acts, but contends 
that ^' it cannot be extravagant to assert" that if a military 
officer were to levy taxes by quartering troops on inhabitants 
■" in a general and systematic manner, he would, according 
" to a warrantable construction of the statutes, be guilty of 
'* the treason called levying of war against the King. " He 
thinks, however, that there was no evidence that Strafford 
did act in a general and systematic way, and this, no doubt, 
is true. Whether such an interpretation " could be extra- 
■''vagant" it is difficult to say, and it must be admitted that 
^ Const. Hist, ii. 107. 



364 TRIAL OF CHARLES I. 

Chap. XI. it might be said to be *' warrantable " by reference to some of 
' the cases which have been decided upon the 25 Edw. 3 ; 
but, however that may be, I think it is at least equally clear 
that it would not be correct. The abuse of military power to 
the oppression of the subject is no more the same thing as 
an attempt to subvert the established Government by force, 
than perjury which misleads is the same thing as bribery 
which corrupts a judge. 

The proceedings against King Charles I. form a remark- 
able illustration of the contrast which exists between the 
administration of justice before and after the Long Par- 
liament and the Civil War. He was, as is known to every 
one, condemned principally for refusing to -plead to the 
charges made against him by the High Court of Justice, and 
this was nearly the only step in the whole of his career in 
which he was not only well advised, but perfectly firm and 
dignified in his conduct. If he had pleaded he would, of course, 
have been convicted. The Court, however, did not put their 
sentence solely on that ground. They took evidence to satisfy 
their consciences, and there are few stranger documents than 
1 the depositions of the witnesses who would have been called 
against him if he had pleaded, and whom the Court thought 
it necessary to hear. They prove his presence at the different 
battles, and the fact that people were killed there, just as wit- 
nesses in the present day would prove the facts about any 
common case of theft or robbery. For instance : " Samuel 
" Morgan, of Wellington, in the county of Salop, felt-maker, 
" sworn and examined, deposeth, that he, this deponent, upon 
" a Monday morning in Keynton field, saw the King upon the 
" top of Edge Hill, in the head of the army ; . . . . and he 
" saw many men killed on both sides, at the same time and 
" place." " Gyles Gryce . . . saw the King in front of the 
" army in Naseby Field, having back and breast on." Also, 
he " saw a great many men killed on both sides at Leicester,, 
" and many houses plundered." 

The punctilious and almost pedantic formality of providing 
such witnesses for the purpose of proving such facts is cha- 
racteristic, and shows how deeply men's minds had been 
1 4 St. Tr. 1101—1113. 



LILBURN's trial under CROMWELL. 365 

impressed with the importance of proceeding upon proper and Chap. XI. 
formal evidence in criminal cases. 

None of the trials under the Commonwealth are more 
remarkable than two prosecutions of ^ John Lilburn, who had 
suffered so severely at the hands of the Star Chamber. The 
trial in 1649 was for publishing pamphlets denouncing the 
Parliament and Cromwell, in contravention of ^ acts of May 
and July, 1649, which made it treason to " maliciously and 
*' advisedly publish by writing, printing, or openly declaring 
" that the said Government is tyrannical, usurped, or unlaw- 
" ful." That Lilburn had published the pamphlets, and that 
the pamphlets did in express words assert that the Government 
was tyrannical, was proved beyond all possibility of doubt ; 
but he was acquitted ; '' which," says Clarendon, " infinitely 
" enraged and perplexed Cromwell, who looked upon it as a 
" greater defeat than the loss of a battle would have been." 
It is difficult to give an idea, in any moderate compass, of the 
trial which ended in this manner, but it was on many 
accounts remarkable. Lilburn, who had been nicknamed 
"Freeborn John" on account of his continual brags about 
freeborn Englishmen, Magna Charta, and the good old laws 
of England, entered, on each of his trials, into a regular battle 
with the Court, and appealed to the jury for protection. He 
began by refusing to plead, or even to hold up his hand, 
until he had made a ^ long speech upon all sorts of topics 
which the Court was weak enough to listen to without inter- 
rupting him. He then got into an almost endless discussion 
as to pleading not guilty. He meant to say that he did not 
wish by pleading to waive any objections which might lie to 
the indictment and that he did wish to have a copy of the in- 
dictment and counsel assigned to him, to see whether or not it 

^ Besides the Star Chamber prosecution already noticed Lilburn was tried 
for his life four times, namely (as h(! .said), first in London in 1641, "before 
" tln! House of Peers ;" lu^xt at Oxfonl for levying war against the King at 
Brentford (where he had been taken ])iisoner), wIkhi his life was saved by th(> 
Parliament's threat to treat the Cavalier ])risoners as he might be treated ; 
af,'ain for high treason in 1649, and again for felony in returning from 
])anishment in 165;i. Of his first and second trials on eapital charges there 
are no reports. There is an account of the third trial in 4 SL Tr. 1269, and 
of the fourth in 5 lb. 407. The last, whi(;li was written by Lilburn him- 
self, is left incomplet<!. 

2 Printed in 4 St. Tr. 1847—1851. ' Ih. 1270—1283. 



3^6 lilburn's trial under cromwell. 

Chap. XI. was epen to any objection. He urged these contentions witlc 
such pertinacity, and managed to introduce so many collateral 
topics into the discussion, that the whole day was spent in it. 
The Court showed, as it seems to me, little either of firmness 
or dignity in the manner in which they discussed the subject, 
and argued with the prisoner. They told him, time after 
time, that he was not entitled to what he demanded, but they 
' shrank apparently from saying, as, the charge being treason, 
they undoubtedly might have done, that if he did not plead 
directly guilty or not guilty, they would pass judgment on him. 
One point in the discussion is curious enough to be noticed 
specifically. On one occasion, when he was pressed to plead, 
• Lilburn said, " By the laws of England, I am not to answer 
" to questions against or concerning myself" To this Keble,, 
who was first on the commission, replied, " You shall not be 
'' compelled ; " and he afterwards added, " The law is plain, 
'* that you are positively to answer guilty or not guilty.*' To 
which Lilburn replied, " By the Petition of Right, I am not 
" to answer any questions concerning myself." I cannot 
understand what Lilburn can have been thinking of in this 
observation, for there is not a word in the Petition of Right 
which bears upon the subject, but his argument shows how 
strong the popular feeling was on the subject of questioning 
prisoners. After infinite wrangling Lilburn was got to plead 
not guilty, after which the trial proceeded with interruptions 
and wrangling at every instant. The printing of the books 
was proved, and the prisoner was asked on several occasions 
whether he owned them to be his. He uniformly replied 
that the Petition of Right taught him to answer no questions 
about himself, ^ " and I have read of the law to be practised by 
" Christ and his apostles." At last, after endless " struggling," 
as Lilburn calls it, he arrived at his defence, which, stripped 
of the innumerable quibbles and topics of grievance in which 
he wrapped it up, amounted to this, that the Act under which 

^ In answer to one question he said, " I am upon Christ's terms. When 
" Pilate asked him whether he was the Son of God, and adjured him to tell 
'• him whether he was or no, he replied, ' Thou sayest it.' So say I, thou Mr. 
" Prideaux" (the Attorney-General), *' sayest it, these are my books. But 
"prove it." Lilburn did not perceive what an astonishing saying he was 
putting into Christ's mouth, who, according to his view, refused to admit that 
he was the Son of God, and called upon Pilate to prove it. (4 SL Tr. 1342.) 



lilburn's second trial. 367 

he was indicted was bad and tyrannical, that he was a better Chap. XI. 

patriot than those who prosecuted him, and had done and " 

suffered much in the popular cause ; and that ^ " The jury by 

" law are not only judges of fact but of law also ; and you 

" that call yourselves judges of the law are no more but 

" Norman intruders ; and in deed and in truth, if the jury 

'' please, are no more but ciphers to pronounce their ver- 

'* diet." This, no doubt, was the point which secured his 

acquittal. 

Lilburn was afterwards banished by Act of Parliament, 
and it was provided that if he returned from his banishment 
he should be guilty of felony. He did return, and ^ his trial 
on that occasion was even more stormy than the earlier 
one. His own account of its " furious hurley hurleys " 
is very curious, as far as it goes. He performed the feat 
which no one else ever achieved, of extorting from the Court 
a copy of his indictment in order that he might put it before 
counsel and be instructed as to the objections which he might 
take against it. His substantial defence on that occasion also 
was, that the Act applied to him was tyrannical, and that the 
jury were judges of the law apparently in such a sense, 
that they need not put it in force unless they approved of it. 
He was acquitted again, and ^ the jury were examined before 
the Council of State as to their reasons for their verdict. Many 
of them refused to answer, but several of them said that they 
regarded themselves as judges of the law as well as of the 
fact, whatever the judges might say to the contrary. 

Such incidents as the acquittals of Lilburn are defeats 
which every revolutionary Government is exposed to if their 
proceedings are disapproved of by any considerable section of 
the community; and parallels to Lilburn's trial might be 
found in many of the political prosecutions which took place 
under Louis Philippe. When an ancient and well-established 
system of government has been overthrown by force, that 
which is established in its place can hardly expect to have its 
laws supported and carried into execution merely as law, 
and apart from the personal opinion which jurors may have 
of their justice. Even under the quietest and best-established 

1 4 St. Tr. 1870. 2 5 ji^ 407. 8 lb. 446—460. 



3^^ CASE OF FAULCONER. 

Chap. XI. -Governments it not unfrequently happens that a jury will 
refuse to enforce the law if they think it hard in a particular 
case. Instances of this have occurred even in our own times. 
In further illustration of the remarks already made as to 
the character of the trials under the Commonwealth, I may 
refer to the ^ trial of Colonel Morris, for treason, at the York 
Assizes, in 1650, and to the trial ^of Love, for treason, by 
the High Court of Justice. An unfair advantage is said to 
have been taken of Morris in disallowing one of his challenges 
on a very technical ground, but, otherwise, each trial is fair 
and patient enough, and conducted in a manner closely 
resembling our modern practice. 

Few trials are reported in the State Trials during the 
Commonwealth for offences not connected with politics, but I 
may mention one on account of the way in which it illustrates 
the absence of rules of evidence in the seventeenth century. 
^In 1653, Benjamin Faulconer was tried for perjury before 
the Commissioners for sequestrations and compositions of the 
Royalists' estates. He had made statements the effect of 
which was that the estates of Lord Craven were sequestrated. 
Upon this he was * indicted for perjury by the Craven 
family, in the Upper Bench, as the Court of King's Bench 
was then called. Many witnesses w6re called to prove the 
falsehood of the matter sworn, after which ^ others were called 
to show that Faulconer was a man of bad character. They 
testified to his having drunk the devil's health in the street 
at Petersfield ; to his having used bad language and been ' 
guilty of gross immorality ; and, lastly, to his having been 
committed on suspicion of felony and having *' a common 
*■ name for a robber on the highway." As Faulconer's evidence 
had been accepted and acted upon by Parliament, it is 
unlikely that he should have been treated at his trial with 
any special harshness. It would seem, therefore, that at this 
time it was not considered irregular to call witnesses to prove 
n, prisoner's bad character in order to raise a presumption of 
his guilt. 

1 4 St. Tr. 1250. 2 5 jj^ 43, 3 4 /j, 323. 

* It is remarkable that the indictments do not aver the materiality of the 
matter sworn. 

5 4 St. Tt. 354—356. 



THIRD PERIOD, l66o — 1 6/8. 369 



III.— 1660— 1678. 

The reigns of Charles II. and James II. form perhaps the Chap. XI. 
most critical part of the history of England, as the whole 
course of our subsequent history has been determined by the 
result of the struggles which then took place. At every 
critical point in those struggles a leading part was played by 
the courts of criminal justice, before which the contending 
parties alternately appeared, charged by their adversaries 
with high treason, generally on perjured evidence, and before 
judges who were sometimes cowardly and sometimes corrupt 
partisans. 

The history of the most important of these proceedings 
has been so often related that I should not feel justified, 
even if my space allowed me, in attempting to go into their 
circumstances minutely ; but there is still room for some ob- 
servations upon them from the merely legal point of view. 
I do not think that the injustice and cruelty of the most 
notorious of the trials — the trials for the Popish Plot, or 
those which took place before Jeffreys — have been in any 
degree exaggerated. The principal actors in them have 
incurred a preeminent infamy, in mitigation of which 
I have nothing to say, but I am not sure that their 
special peculiarity has been sufficiently noticed. It may be 
shortly characterised by saying that the greater part of 
the injustice done in the reigns of Charles II. and 
James II. was effected by perjured witnesses, and by the 
rigid enforcement of a system of preliminary procedure 
which made the detection and exposure of perjury so diffi- 
cult as to be practically impossible. There was no doubt a 
certain amount of high-handed injustice, and the disgusting 
brutality of Jeffreys naturally left behind it an ineffaceable 
impression ; but, when all this has been fully admitted, I 
tliink it ought in fairness to be added that in the main 
the procedure followed in the last half of the seventeenth 
century differed but little from that which still prevails 
amongst us ; that many of the trials whicli took place — 
especially those which were not for political offences — were 
VOL. I. B B 



370 TRIALS OF THE REGICIDES. 

-^^HAP. XI. perfectly fair ; and that even in the case of the political trials the 
injustice done was due to political excitement, to individual 
wickedness, and to the harsh working of a system which, 
though certainly defective in admitting of the possibility of 
being harshly and unjustly worked, was sound in many respects. 

The number of the trials reported during these reigns is 
so great (they fill seven volumes of the State Trials) that it 
is necessary to notice them in groups, and to pass over 
unnoticed many curious details. 

The first set of trials after the Restoration are ^ those of 
the regicides in 1660, to which may be added the trial of 
Sir H. Vane the younger in 1662. Of the trials of the 
regicides there is little or nothing to be said from the legal 
point of view. That they had compassed and imagined the 
death of the King, and had (as the indictment averred) dis- 
played that compassing and imagination by cutting off his 
head, admitted of no doubt at all, and it was equally plain that 
this was treason within the 25 Edw. 3. Their real de- 
fence was that Charles had in fact ceased to reign, and that 
they acted under the authority of those who, for the time 
being, were in fact the rulers of the country; but the 
very point of the Restoration and of the prosecution was 
that this defence was not sufficient, that the civil war had 
been a successful rebellion, that the proceedings of the part 
of the House of Commons which exercised the powers of 
Parliament in 1649 were, so to speak, a rebelHon upon a 
rebellion, and that the execution of Charles was a combina- 
tion of treason and murder. As a practical proof of this, 
Denzil Hollis and the Earl of Manchester — who had been 
two of the six members arrested by Charles I. — and Annesley, 
who was a member expelled by Pride, were members of 
the Commission of Oyer and Terminer, which tried Charles's 
judges. Hollis and Annesley took an active part in the pro- 
ceedings. ^ Hollis in particular rebuked Harrison vehemently 
when he alleged the authority of Parliament for what he 
had done. 

1 5 .S'^. Tr. 947—1364. 

^ Ih. 1078. "You do very well know that this that you did, this 
" horrid, detestable act which you committed, could never be perfected by 
" you till you had broken the Parliament. ... Do not make the Parliament 






i 



TKIALS OF THE KEGICIDES. 2>7'^ 

The facts were so plain, and the views of the subject, taken Chap. XI. 
by the Court and the prisoners respectively, so diametrically " 
opposed to each other, that the legal interest of the trials is 
small. The prisoners did not dispute the facts; many of 
them avowed and justified what they had done, particularlj^ 
Harrison, Scroop, and Carew. ^Cook, who had been Solicitor- 
General at the King's trial, defended himself elaborately and 
ignominiously, on the ground that, though excepted by name 
from the Act of Oblivion, he had not within its true mean- 
ing *' been instrumental "in taking away the life of Charles. 
The words were, " sentencing, signing, or being instrumental," 
which, he argued, must mean being instrumental in the same 
way as a person who sentenced or signed. " Observe it is 
" not said being any other ways instrumental." " I have 
" been told," he said, *' that those that did only speak as 
" counsel for their fee, who were not the contrivers of it, the 
" Parliament did not intend they should be left to be pro- 
'' ceeded against.'* ...-.*' I must leave it to your " (the jury's) 
" consciences, whether you believe that I had a hand in the 
" King's death, when I did write but only that which others 
" did dictate unto me, and when I spoke only for my fee." 

By this mean line of defence he had no chance (as he ought 
to have known) of saving his life, and he only exposed him- 
self to the crushing and unanswerable retort of Sir Heneage 
Finch (his successor in the office of Solicitor-General), ^" He 
" that brought the axe from the Tower was not more 
'' instrumental than he." 

The least intrinsically important of the trials of the regi- 
cides, that of ^ Hulet, has some legal interest, as it shows 
how loose the rules of evidence then were. Hulet was ac- 
cused of having been the actual executioner of Charles. He 
was tried, I think, quite fairly ; but was convicted on such 
insufficient evidence that the judges procured a reprieve for 
him. The evidence against him consisted almost entirely 
of hearsay, and of evidence of his own admissions. On the 
other hand, he was allowed to call several persons who said 

** to be the author of your black crimes." Annesley said something to the 
same effect, thouf^li in gentler language, to Carew. — Pp. 1066, 1057.- 

' 6 Ht. Tr. 1077—1115 (see C8i>eciall y 1097, 1098). 

2 lb. 1100. » lb. 1185-1195. 

B B 2 



372 PREVIOUS CONSULTATION OF THE JUDGES. 

Chap. XI. they heard Brandon, the hangman, admit that he had done 
it. ^ Such evidence would, under the present rules of evidence, 
be excluded. 

In the case of the trials of the regicides, as in several 
subsequent cases, the judges held a consultation, at which 
2 the law officers of the Crown were present, in which they 
came to a number of resolutions as to points of law which 
might arise upon the trial. One of these has some general 
interest. " It was resolved that any of the King's counsel 
" might privately manage the evidence to the Grand In- 
" quest, in order to the finding of the bill of indictment, 
" and agreed that it should be done privately : it being 
" usual in all cases that the prosecutors upon indictments are 
" admitted to manage the evidence for finding the bill, and 
" the King's counsel are the only prosecutors in the King's 
" case, for he cannot prosecute in person." One of the reso- 
lutions deserves to be reprinted on account of its extra- 
ordinary pedantry. " The compassing of the King's death 
" being agreed to be laid in the indictment to be 29th 
*' January, 24 Car. I., and the murder on the 30th of that 
" same January, it was questioned in which king's reign the 
" 30th of January should be laid to be, — whether in the reign 
" of King Charles I. or King Charles II. ; and the question 
" grew because there is no fraction of the day ; and all the acts 
''' which tended to the King's murder until his head was 
" actually severed from his body were in the time of his own 
" reign, and after his death in the reign of Charles II. And 
" although it was agreed by all except Justice Mallett that 
" one and the same day might in several respects and as to 
" several acts be said to be entirely in two kings' reigns .... 
" yet because Justice Mallett was earnest that the whole day 
" was to be ascribed to King Charles II., therefore it was 
" agreed that in that place no year of any king should be 
" named, but that the compassing of the King's death should 
"be laid on the 29th January, 24 Car. I., and the other 

1 See Stobart v. Dryden, 1 M. & W. 615. 

- i.e. the Attorney and Solicitor-General and their King's counsel, "there 
" being then no King's Serjeant but Serjeant Glanvil, serjeant to the late 
" King, who was then old and infirm." — Kelyng's Reports, quoted in 5 St. 
Tr. 971—983. I think that after the Civil War the King's Serjeants, in England 
at least, were entirely superseded by the Attorney- and Solicitor-General. 



CASES OF VANE AND MESSENGER. 373 

" acts tending to the murder and the murder itself laid to be Chap. XL 
" * tricesimo mensis ejicsdem Januarii,' without naming the year 
" of any king, which was agreed to be certain enough." 

The ^ trial of Sir Henry Vane in 1662 appears to me to 
have been a cruel and revengeful proceeding, as the treason 
alleged and proved against him ^ consisted exclusively in his 
having acted in the ordinary routine of government, and 
especially as a member of the Council of State from the exe- 
cution of Charles downwards, and in particular in his having 
kept Charles II. out of possession 'of his kingdom. These 
acts were clearly within the spirit ^of the famous act of 
11 Hen. 7, c. 1, and it was difficult to bring them within 
the letter of the 25 Edw. 8. It is remarkable that in 
this case the Court held that no bill of exceptions can be 
tendered in criminal cases — a memorable resolution, the effect 
of which has been to restrict anything in the nature of an 
appeal in criminal trials to those few and rare instances in 
which some error has taken place in the procedure which 
would be entered on the record. 

Between the trials of the regicides and the trials for the 
Popish Plot (1660-1678) several trials of great constitutional 
importance took place. One of them was the case of 
Messenger and others, who were tried at the Old Bailey 
for high treason in levying war against the King. I shall 
refer to it in connection with the history of the law of 
treason. Another and a far more important one was ^ the 
trial of Penn and Meade for a tumultuous assembly, and the 
proceedings which arose out of it against Edward Bushell. 
The tumultuous assembly consisted in Penn's preaching a 
sermon in Gracechurch -street. The account of the trial was 
written by the prisoners, and naturally gives them the best 
of the argument on every occasion. If the account is correct, 
tliey both showed remarkable presence of mind and vigour of 
language ; but I cannot help thinking that a good many of 

^ 6 St. Tr. 119 — 202. Vane's real o(r(!Tice was no doubt his conduct Rt 
StrafTord'H trial, 

2 lb. 148, 149. 

' Ih. 9r)l, Tliis trial was in 1670. A similar chhv in which the jury were 
fined and cinestioned by Kelyng, C.J., is reporttid in Kelyng, p. 69, first 
edition of 1873. 



374 penn's case. 

Chap. XI. their retorts were recollections of what they ought to have said. 
Whether actually made or not, the remarks of Penn and 
Meade throw light on the temper of their time and class on 
several legal subjects. The meeting having been sworn to, 
the Recorder asked Meade if he was there, to which ^ Meade 
replied, " It is a maxim in your own law, ' Nemo tenetur 
'* ^ ciccusare seipsum,' which, if it be not true Latin, I am sure 
" it is true English, that no man is bound to accuse himself. 
" And why dost thou offer to ensnare me with such a ques- 
" tion ? Doth not this show thy malice ? Is this like unto 
" a judge that ought to be counsel for the prisoner at the 
'' bar ? " Afterwards Penn asked the Recorder, " Let me 
" know upon what law you ground my indictment. He- 
" corder : Upon the common law. Penn : Where is that 
" common law ? Recorder : You must not think that I am 
" able to run up so many years and over so many adjudged 
" cases which we call common law to answer your curiosity. 
'' Penn : The answer, I am sure, is very short of my question ; 
'' for if it be common law it should not be so hard to pro- 
" duce." The Court and the prisoners by degrees got into a 
dispute so hot that ^ the Lord Mayor is said to have told 
Meade he *' deserved to have his tongue cut out," and both 
he and Penn were removed into the " Bale Dock," which they 
describe as " a stinking hole," out of court. The jury would 
find no other verdict than that Meade was not guilty, and 
Penn "guilty of speaking in Gracechurch-street." According 
to Penn, the jury were shamefully reviled and locked up for 
the night, " till seven o'clock next morning (being the 4th 
'* instant), vulgarly called Sunday." Ultimately they re- 
turned a verdict of not guilty as to both, though not (if the 
report is correct) till the Recorder had expressed his admira- 
tion for the Spanish Inquisition, and the Mayor had said he 
would cut Bushell's (the foreman's) throat as soon as he could. 
The jury were fined forty marks apiece for their verdict, and 
• sentenced to be imprisoned till they paid it. Bushell and 
his fellow-jurors obtained a writ of habeas coiyiis. The 
return to the writ was that they were imprisoned for con- 

1 6 St. Tr. 987. 

^ The trial was before the Mayor, the Recorder, and five aldermen. 



» TRIAL OF KEACH. 375 

tempt of court in acquitting Penn and Meade " contra legem Chap. XI. 

" hujus regni Angliae, et contra plenum" (sic) "et manifestum " 

(sic) "evidentiam, et contra directionem Curiae in materia 

" legis." But the judges who heard the argument (ten out 

of twelve) decided that the discretion of the jury to believe 

the evidence or not could not be questioned, and the jurymen 

were accordingly discharged from custody without paying their 

fines. This is the last instance in which any attempt has 

ever been made to question the absolute right of a jury to 

find such a verdict as they think right. I am not certain, 

however, that the case of a jury persisting in convicting a 

prisoner without evidence, or on evidence clearly insufficient 

in law to sustain the conviction, might not, if it ever arose, 

give rise to considerable difficulty. 

A trial which has been little noticed, but which, if it had 
been treated as a precedent, would have been of momentous 
importance, took place at Aylesbury assizes in 1665, before 
Lord Chief Justice Hyde. ^ One Keach, of Winslow, in Buck- 
inghamshire, wrote a tract containing what were then known 
as Anabaptist doctrines. It maintained that infants ought 
not to be baptized, that Christ would reign on earth perma- 
nently for a thousand years, and some other matters. For 
iihis he was indicted for " maliciously writing and publishing 
" a seditious and venomous book, wherein are contained daran- 
" able positions contrary to the Book of Common Prayer." 
Keach was convicted, and sentenced to a fortnight's imprison- 
ment and to stand twice in the pillory. The judge's conduct 
on the bench, as reported, was in every respect disgraceful. 
The indictment is not given in the report. It might have been 
drawn under the Licensing Act (13 & 14 Chas. 2, c. 33, s. 2), 
which provides that no person shall presume to print any 
heretical book or pamphlet, wherein any doctrine or opinion 
is asserted or maintained contrary to the Christian faith, or 
the doctrine or discipline of the Church of England. Tliis 
would make such a publication a misdemeanour. Whether 
the indictment was at common law or under the statute does 
not appear. If the book was treated as a libel indictable at 
♦common law, and not as, at most, an ecclesiastical offence, the 
» 6,8'^ Tr. 701. 



37^ TRIAL OF THE TURNERS. 

Chap. XI. case was an unheard-of extension of the criminal law. I am 
not aware that this bad example was ever followed. 

A considerable number of trials for ordinary crimes uncon- 
nected with politics are reported in the State Trials during 
this period. I may particularly refer to ^ the trial of Colonel 
Turner, his sons and his wife, for burglary and robbery, in 
1664, ^ that of Hawkins, for theft, in 1669 ; the trials for 
murder of ^ Lord Morley, in 1666, and ^ Lord Pembroke, in 
1678 , and the trial of ^ the witches in Suffolk, in 1665. 

The trial of the Turners is extremely curious as an ^ illus- 
tration of the manners of the time ; but in a legal point of view 
its chief interest depends on its forming a very perfect illus- 
tration of the way in which, at that time, a complicated trial 
for a common offence was conducted. It is indeed the earliest 
instance, so far as I know, of a full report of such a trial. 

No counsel seem to have been employed ; at least none are 
mentioned. The first witness called was the magistrate who 
had investigated the case and committed the prisoner (Sir 
Thomas Aleyn, an alderman). Being asked in general terms 
to ''tell his knowledge to the jury," he made a speech de- 
scribing all his proceedings and inquiries, and stating the 
information he had received from various people of whom he 
made inquiries ; far the greater part of what he said would by 
the present rules of evidence be inadmissible. The gist of 
it was, that suspecting Turner he examined him the day 
after the robbery, and having received further information 
next day (all of which he stated at full length), examined 
him further, searched his house, and, partly by promises of 
favour, got him to restore a great deal of the stolen property 
(£1,000 in cash, and jewels worth £2,000 and upwards). The 
prosecutor and various other witnesses to the facts were 
then called, and in particular Sir Thomas Chamberlain, 
another alderman, who had been concerned in inquiring into 
the case. When all the evidence had been given. Lord Chief 

1 QSt. Tr. 566. ^ j^^ 932. ^ /^,, 770. 4 /j, igjo. 5 jj^ ^47^ 

Tui'ner was an old Cavalier officer. His speech at the scaffold lasted two 

hours. It IS an extraordinary performance, full of an infinity of things which 

he said to spin out the time, in hopes of the arrival of a pardon. He said, 

for instance, " I was a constant Churchman ; it is well known to my parish- 

loners I never durst see a man in the church with his hat on. It troubled 

me very much." — 6 St. Tr. 626. 



TRIAL OF HAWKINS. 2)11 

Justice Hyde shortly and very clearly ^ summed up the whole Chap. XL 
matter to Turner, saying, " I would propose this to you, to 
'' make your defence touching your charge ;" and he ended by 
saying, " Laying all this together, unless you answer it, all the 
*' world must conclude-that you are one that did this robbery." 
Turner ^ made a long speech in answer to this, and called 
witnesses. He was questioned at intervals, and ^ on one occa- 
sion at considerable length, on his statement, in such a way 
as to set in a clear light its glaring improbability, but not, as 
it seems to me, harshly or unfairly. The questioning, in 
short, was no longer what it had been in the days of Elizabeth 
and James I., — the very essence of the trial. It was used as 
the natural way of getting at the truth, and was by no means 
in all cases a disadvantage to the prisoner. It served rather to 
call his attention to the matter against him, and so to bring 
out his defence, if he had one. 

The defence was followed by the summing-up of the judges. 
Lord Chief Justice Hyde said, amongst other things, to the 
jury, * "You take notes of what hath been delivered " (which 
seems as if he did not). '' I have not your memories : you are 
" young." If fully reported, the summing-up was not very 
remarkable in anyway. 

The trials of Hawkins for theft, and of the Suffolk witches, 
are the only cases in the 8taU Trials tried by Hale. I can- 
not say that either of them justifies his extraordinary repu- 
tation. Hawkins was a Buckinghamshire clergyman, accused 
by an Anabaptist parishioner of stealing two rings, an apron, 
and £1 195. in money. The report is by the prisoner him- 
self. If correct, it shows that the charge against him was 
the result of the grossest perjury and conspiracy founded 
upon base personal malice. In the case itself there is 
nothing very remarkable, except that the prosecutor (who 

'^ ^ St. Tr. 593—594, This summary gives the history of the case, which 
is very intricate, in a vcny few words. 

"^ Ilis wife interi-uptod him in a very grotesque way (603 — 604). He 
apologized for her, ol)H(!rving for one thing that he had had '* twenty-seven 
" children by h(!r — Uftiten sons and twelve daughters." 

» 6 HI. Tr. 605—610, and (^Hpceially 610. 

* Ih. 612. The pnictiefi of taking notes, now universal amongst the judges, 
was of slow growth. See (.'ollodge's case, 8 St. Tr. 712 ; Cornish's case, 11 lb, 
437 ; the Annesley case, 17 lb, 1419, note, A passage already referred to in 
Throckmorton's case is to the same effect. 



^yS TRIAL OF THE SUFFOLK WITCHES. 

Chap. XL seems to have acted as counsel, there being no counsel for 
the Crown) was allowed to give evidence to show that 
Hawkins had committed two other thefts wholly uncon- 
nected with the one for which he was being tried, which, 
^ said Hale, '' if true, would render the prisoner now at the bar 
*' obnoxious to any jury." Hale, after expressing his opinion 
that the case was perfectly clear, and the prosecutor " a very 
" villain, — nay, I think thou art a devil," and after the jury 
had declared they were fully satisfied of Hawkins's innocence, 
appears to have given an elaborate charge to the jury. 

2 The trial of the Suffolk witches, in 1665, is curious, not 
only as one of the last specimens in England of an odious 
superstition, but because it seems that rules of evidence 
founded, one would have thought, on the most obvious common 
sense were altogether unknown to, or at least unrecognised 
by, the most famous judge of his time. 

Two women, Rose Cullender and Amy Duny, were indicted 
for bewitching several children, who were considered too young 
to be called as witnesses. The evidence came in substance to 
this — that each of the women had a quarrel with some of the 
parents of the children said to be bewitched ; that afterwards 
the children had fits ; that in their fits they threw up crooked 
pins, and declared that the two prisoners were tormenting 
them, and that they saw their apparitions. Some other in- 
cidents were alleged, almost too puerile to relate, e.g. "a 
" little thing like a bee flew upon the face " of one of the 
children, whereupon she y vomited up a twopenny nail with 
" a broad head," and said, '' The bee brought this nail and 
" forced it into her mouth." This was proved, not by the 
child, but by her aunt, who seems not to have been asked 
the most obvious questions, such as whether when she saw 
the bee it was carrying the nail, and, if so, how, and as to 
the child's opportunities of getting the nail and putting it 
in her mouth. A quantity of nonsense of this sort having 
been proved, it is satisfactory to find that ^ '' Mr. Serjeant 
^'Keeling" (probably as amicus curicB) ''seemed much un- 
" satisfied with it, and thought it not sufiicient to convict 
*' the prisoners ; for, admitting that the children were, in 
1 6 St. Tr. 950. 2 j^^ gg;^ 3 75. 597. 



TRIAL OF THE SUFFOLK WITCHES. 379 

*' truth, bewitched, yet " (said he) " it can never be applied Chap. XL 
" to the prisoners upon the imagination only of the parties 
*' afflicted ; for, if that could be allowed, no person what- 
" soever can be in safety." This view of the matter was 
encountered by the famous Dr. Brown, the author of Religio 
Medici, ^ "who, upon view of the three persons in court, was 
'' desired to give his opinion what he did conceive of them ; 
" and he was clearly of opinion that the persons were be- 
*' witched, and said that in Denmark there had been lately 
'' a great discovery of witches, who used the very same way 
" of afflicting persons by conveying pins into them, and 
'' crooked as these pins were, with needles and nails. And 
'' his opinion was that the devil in such cases did work upon 
*' the bodies of men and women upon a natural foundation 
'' (that is) to stir up and excite such humours superabound- 
" ing in their bodies to a great extent, whereby he did in 
*' an extraordinary manner afflict them with such distem- 
'' pers as their bodies were most subject to, as particularly 
" appeared in these children ; for he conceived that these 
" swooning fits were natural, and nothing else but that they 
*' call the mother, but only heightened to a great excess by the 
*' subtlety of the devil cooperating with the malice of those 
" we term witches, at whose instance he doth these villanies." 
Fortunately, perhaps, for Dr. Brown, the art of cross- 
examining experts was in those days uninvented. Some 
slight experiments were tried with the children, who pro- 
fessed to be insensible, but to know when one of the witches 
touched them. They performed this feat successfully in court ; 
but, some persons being sceptical, the experiment was per- 
formed again in a different place, in the presence of several 
persons of distinction, chosen by the judge, of whom Serjeant 
Keeling was one. On this occasion one of the children was 
blindfolded, and the witch brought to her ; but another 
person was made to touch her, " which produced the same 
" effect as the touch of the witch did in the court ; whereupon 
*' the gentlemen returned, openly protesting that they did 
** believe the whole transaction of this business was a mere 
*' imposture." Hale, however, although he might, and I 
1 6 St. Tr. 697. 



380 TRIAL OF THE SUFFOLK WITCHES. 

fiAP. XI. think ought, to have told the jury that there was nothing 
which could possibly be called evidence to connect the pri- 
soners with the supposed offence, treated the matter not 
only with gravity, which indeed was his duty, but with that 
misplaced and misunderstood impartiality which is one of the 
temptations of a judge better provided with solemnity, re- 
spectability, and learning than with mother- wit. His obvious 
duty was, first, to see that the case was one in which two 
poor old women's lives were put in jeopardy by the stupid 
superstition of ignorant people ; next, to save them from their 
danger by insisting on the point put forward by Keeling, and 
on the proof of fraud given by the experiment tried in court. 
He did neither of these things. He told the jury that ^ *' he 
" would not repeat the evidence unto them, lest by so doing 
" he should wrong the evidence on the one side or the other. 
" Only this he acquainted them, that they had two things to' 
'' inquire after. First, whether or no these children be be- 
" witched ? Secondly, whether the prisoners at the bar were 
'' guilty of it ? That there were such creatures as witches he 
" had no doubt at all ; for, first, the Scriptures affirmed so 
" much ; secondly, the wisdom of all nations had provided 
'' laws against such persons, which is an argument of their 
" confidence of such a crime. And such hath been the judg- 
*' ment of this kingdom, as appears by the Act of Parliament 
" which hath provided punishments proportionable to the 
" quality of the offence ; and desired them strictly to observe 
" their evidence, and desired the great God of heaven to 
" direct their hearts in this weighty thing they had in hand , 
" for to condemn the innocent, and to let the guilty go free, 
" were both an abomination to the Lord." The poor old 
women were both convicted and hanged. 

2 A trial for witchcraft took place seventeen years afterwards 
(in 1682), before Judge Raymond, in which three poor old 
creatures confessed their guilt, and were hanged. ^Eoger 
North has some remarks on this, which do honour to his 
good sense and feeling. '' These were two miserable old 
" creatures that one may say, as to sense or understanding, 
" were scarce alive, but were overwhelmed with melancholy 

1 QSt. Tr. 700, 701. 2 8 /J. 1017. 3 lives of the Norths, i. 266, 267. 



I 



ROGER NORTH ON WITCH TRIALS. 38 I 

" and waking dreams, and so stupid as no one could, suppose Chap. XI. 

'' they knew either the construction or consequence of 

" what they said. All the rest of the evidence was trifling. 

'' I, sitting in court the next day, took up the file of the 

'' informations taken by the justices, which were laid out 

*' upon the table, and against one of the old women read 

" thus : •' This informant saith he saw a cat leap in at her 

^' ' (the old woman's) window when it was twilight. And this 

*' ' informant further saith that he verily believeth the said 

" ' cat to be the devil, and further saith not.' The judge 

'' made no such distinctions as how possible it was for old 

"' women, in a sort of melancholy madness, by often thinking 

" in pain and want of spirits, to contract an opinion of them- 

*' selves that was false ;"...'' but he left the point upon the 

" evidence fairly (as they call it) to the jury, and they con- 

'' victed them both." He proceeds to give an account of the 

dexterity and quiet good sense with which Lord Keeper 

Guildford tried such a case, and procured the acquittal of a 

poor old man. One remark in it must not be omitted. ''It 

" is seldom that a poor old witch is brought to trial on that 

*' account, but there is at the heels of her a popular rage 

" that does little less than demand her to be put to death ; 

'* and if a judge is so clear and open as to declare against 

" that impious, vulgar opinion that the devil himself has 

'* power to torment and kill innocent children, or that he is 

" pleased to divert himself with the good people's cheese, 

" butter, pigs, and geese, and the like errors of the ignorant 

" and foolish rabble, the countrymen (the triers) say their 

" judge hath no religion, for he doth not believe witches ; • 

" and so, to show they have some, hang the poor wretches. 

'* All which tendency to mistake requires a very prudent, 

" moderate carriage in a judge, whereby to convince rather 

" by detection of the fraud than by denying authoritatively, 

" such power to be given to old women." 

The imprcHsion made upon my mind by these trials is, 
that when neither political nor religious passions or preju- 
dices were excited, when the matters at issue were very 
plain and simple, when the facts were all within the 
prisoner's knowledge, and when ho was not kept in close 



3^2 REMARKS ON TRIALS IN THE 17TH CENTURY. 

Chap. XI. confinement before his trial, and was able to consult counsel, 
and to procure witnesses if he had any, trials were simple, 
fair, and substantially just, though little or no protection 
against perjury was afforded ; but when any of these conditions 
was not fulfilled, the prisoner was at a great disadvantage. 
There were practically no rules of evidence. The witnesses 
were allowed to make spseches, in which they introduced 
every sort of irrelevant matter which might prejudice the 
jury against the prisoner. The prisoner had no counsel. . He 
was, indeed, allowed to cross-examine, but cross-examination 
was hardly understood at all, and every one who has any ex- 
perience of the matter knows that to cross-examine on bare 
speculation, and without previous knowledge of what the 
witness is going to say, is likely to do even a good case more 
harm than good. The result was that if the Court were pre- 
judiced, if the prisoner was kept in close confinement up to 
his trial, and if perjured witnesses were called against him, 
he was practically defenceless. The character of the proce- 
dure is well illustrated by the argument constantly used by 
the 1 judges to justify the rule which deprived prisoners of 
counsel on matters of fact. It was, that in order to convict 
the prisoner, the proof must be so plain that no counsel could 
contend against it. In the very commonest and simplest cases 
there is some truth in this, if it is assumed that the witnesses 
speak the truth ; but if the smallest complication is intro- 
duced, if the facts are at all numerous, if the witnesses either 
lie or conceal the truth, an ordinary man, deeply ignorant 
of law, and intensely interested in the result of the trial, 
and excited by it, is in practice utterly helpless if he has- 
no one to advise him. A study of the State Trials leads 
the reader to wonder that any judge should ever have 
thought it worth while to be openly cruel or unjust to 
prisoners. His position enabled him, as a rule, to secure 
whatever verdict he liked, without taking a single irre- 
gular step, or speaking a single harsh word. The popular 
notion about the safeguards provided by trial by jury, if 
only "the good old laws of England" were observed, were, 
I think, as fallacious as the popular conception of those 
^ See e.g. Coleman's case, 7 St. Tr. 14. 



TRIALS FOR THE POPISH PLOT. 383 

imaginary good old laws. No system of procedure ever de- Chap, XI, 
vised will protect a man against a corrupt judge and false 
witnesses, any more than the best system of police will 
protect him against assassination. The safeguards which the 
experience of centuries has provided in our own days are, I 
think, sufficient to afford considerable protection to a man 
who has sense, spirit, and, above all, plenty of money ; but 
I do not think it possible to prevent a good deal of injustice 
where these conditions fail. In the seventeenth century, 
rich and powerful men were as ill off as the most ignorant 
labourer or workman in our own day ; indeed, they were 
much worse off, for the reasons already suggested. 

The importance of these remarks will be illustrated by the 
trials during the next period to which I have to refer. 

IV.— 1678— 1688. 

The ten years immediately preceding the Revolution are, 
perhaps, the most important in the judicial history of 
England. In them occurred the trials for the Popish Plot, 
the Meal Tub Plot, and the Rye House Plot, the trials con- 
nected with the Duke of Monmouth's rebellion, and the trials 
which led to the Revolution itself, of which the trial of the 
seven bishops was by far the most important. The proceed- 
ings of the criminal courts have never before or since been 
of so much general importance, and for the first time we have 
reports of the cases which appear to have been thoroughly 
well taken by ^ good shorthand writers. The result is that 
it is still possible to follow with minute accuracy every word 
of the proceedings. 

Nearly every topic connected with the trials for the Popish 
Plot has been so fully discussed that it will be unnecessary 
to say more than a very few words by way of introduction 
to the subject. 

The story of Gates, brought out by degrees as he gained 
experience of the public passion and credulity, was this : — 

' The first instance I know of in which a sliorthand writer's evidence 
jippears to have been given is in the trial of Sir Patience Ward for porjnry in 
168.3, wlien Hlaney, a shorthand writ(!r, was called to prove? the words sworn. 
J le was severely cross-examined by Jeffreys and others.— J> St. Tr. 317—820. 
Jfe was called in many subsequent trials, e.g. in Ootcs's trial for perjury. 



384 DATES. 

Chap. XI. The Catholics had for many years had a plan for intro- 
ducing Popery into this country, and destroying Protestantism 
by force. The principal parties to this scheme were the 
Jesuits in Spain and France. They held a correspondence 
with Jesuits and others in Eno^land, Coleman beingf one 
of the chief correspondents. They also held "consults" 
at various places in order to concert measures for this 
purpose. One of these was held on the 24th April, 1678, 
at the " White Horse " tavern. It was there determined that 
Charles II. should be murdered by Pickering and Groves, or 
failing that, and failing also " four ruffians procured by Dr. 
" Fogarty," he was to be poisoned by Sir George Wake man, the 
Queen's physician. A great army was also to be raised by 
some means, and introduced into England to massacre the 
Protestants ; and a number of commissions, signed by " the 
" General of the Society of Jesus, Joannes Paulus d'Oliva, by 
" virtue of a brief from the Pope, by whom he was enabled," 
were brought over to England, and were distributed by Mr. 
Langhorn, a barrister in the Temple, to a number of distin- 
guished persons, who, upon the success of the scheme, were 
to receive all the high offices of State. This scheme was 
known to a number of influential Catholics, who held 
" consults" on it in different parts of the country. 

The following dates are material. 

^On the 29th September, 1678, Gates made his first dis- 
coveries to the Council. ^ The same evening a warrant was 
issued by the Council to seize Coleman's papers ; and they 
were accordingly seized by Bradley, their officer. 

3 On the 12th October, 1678, Sir Edmundbury Godfrey 
was murdered. 

^ On the 28th November, 1678, Coleman was tried for high 
treason, and convicted. 

On the 17th December, 1678, Ireland, Pickering, and Grove 
were tried for treason. 

On the 5th February, 1679, Green, Berry, and Hill were 
tried 'for the murder of Sir E. Godfrey. 

1 Extract from Burnet, printed in 6 St. Tr. 1408. 

- Evidence of Bradley in Coleman's case, 7 lb. 33. 

' Trial of Green, Berry, and Hill, for his murder, lb. 189, &c. 

4 lb. 1. 



TITUS GATES, 385 

On the 13th June, 1679, Whitehead and four other Jesuits Chap. xt. 
were tried for treason. " 

On the following day Langhorn was tried for treason. 

On the 18th July, 1679, Sir G. Wakeman was tried for 
treason. 

On June 23, 1680, Lord Castlemaine was tried for treason. 

Finally, on the 30th November and the following days, 1680, 
Lord Stafford was tried for treason. 

Other trials of minor interest were connected with the 
subject, but these were the most important. They ranged, 
as will be seen, over a little more than two years. 

It would be superfluous to discuss minutely the value of 
Oates's statements. No one accustomed to weighing evidence 
can doubt that he and the subordinate witnesses, Bedloe, 
Dugdale, Turberville, and Dangerfield, were quite as bad and 
quite as false as they are usually supposed to have been. Their 
evidence has every mark of perjury about it. They never 
would tie themselves down to anything, if they could possibly 
avoid it. As soon as they were challenged with a lie by 
being told that witnesses were coming to contradict them, 
they always shuffled and drew back, and began to forget. 
Great part of what they said was in itself monstrous and 
incredible, and as they succeeded in one murder after another 
they assumed an air of self-complacent arrogance which rouses 
indignation even after the lapse of two centuries. The, 
cowardice of Scroggs, who allowed such a wretch as Oates to 
assume an air of authority in the Court of King's Bench, 
without reminding him that, if his story was true, he was 
himself a traitor, liar, and hypocrite, who ought not to dare to 
look honest men in the face, is almost as disgusting as the 
impudence which brought that cowardice to light. In short, 
the common judgment on the whole subject appears to me 
right ; but something remains to be said on the light which 
these transactions throw on the administration of criminal 
justice both then and now. 

That the trials for the Popish Ph^t resulted in a dreadful 
series of failures of justice may be taken as admitted. The 
important questions are, Who or what was to blame for thera ? 
How far is it possible to guard against the recurrence of such 

VOL. I. C C 



386 COLEMAN'S CASE. 

Chap. XI. failures of justice ? and To what extent are we secured against 
them now ? In order to answer these questions I will enter 
a little more fully into the evidence and procedure upon these 
trials. The general state of affairs is described in a few 
words, as follows, by ^ Mr. Green : — '' The treaty of Nime- 
" guen not only left France the arbiter of Europe, but it left 
" Charles the master of a force of 20,000 men levied for the 
" war he refused to declare, and with nearly a million of 
" French money in his pocket. His course had roused into 
*' fresh life the old suspicions of his perfidy, and of a secret 
" plot with Lewis for the ruin of English freedom and 
" English religion. That there was such a plot we know ; 
" and the hopes of the Catholic party mounted as fast as the 
" panic of the Protestants.*' 

Such was the state of feeling when Gates told his story. 
Immediately after it had been told, the papers of Coleman 
(the secretary of the Duchess of York) were discovered. 
^They consisted of drafts, in Coleman's own writing, of 
letters sent in 1675 to P^re la Chaise (Louis XIV. 's con- 
fessor), which Coleman had the incredible folly to preserve or 
overlook w4ien he destroyed other papers, thus giving every 
one the impression that these were the least important parts 
of his correspondence. The letter contained the following 
passages: — ** We have here a mighty work upon our hands, 
" no less than the conversion of these kingdoms, and by that, 
" perhaps, the utter subduing of a pestilent heresy w^hich has 
" domineered over a great part of this northern world a long 
*' time. There were never such hopes of success since the 
" death of our Queen Mary as now in our days. When God 
" has given us a prince who has become (may I say a miracle ? ) 
'* zealous of being the author and instrument of so glorious 

"a work." "That which we rely upon most, 

'' next to God Almighty's providence and the favour of 
'' my master the Duke, is the mighty mind of his most 
" Christian Majesty." A few days after this, Sir Edmund- 
bury Godfrey was murdered, probably (as Lord Macaulay 

^ Short History of the English People, 635. 

^ As to their seizure, see evidence of Bradley, Boatman, and Lloyd, 7 St. Tr. 
33 — 35. The letters are printed in full, 35 — 58. The passage quoted is at 
p. 56. 



Coleman's defence. 387 

thinks) by Papists. It was in this state of things that the Chap. XI. 
^ trial of Coleman for high treason took place. His con- 
viction was, beyond all question, caused mainly by the letter 
quoted, and by other letters of a similar character ; but partly 
also by the panic produced by Godfrey's murder, which was 
about a fortnight after Coleman's arrest, and about six weeks 
before his trial. The two witnesses, who by this time 
were universally admitted to be necessary in cases of treason 
(the views which prevailed in Kaleigh's case having become 
inconsistent with the whole course of the procedure), 
were found in ^ Gates and Bedloe. Gates said (amongst 
many other things) that Coleman was, in his hearing, 
informed of the determination of the Jesuits to kill the 
King, and that he (Gates) ^ discussed with Coleman the pro- 
ject of bribing Wakeman to poison Charles ; that Coleman 
took copies of certain instructions given by Ashby (a Jesuit) 
as to murderinor the Kinor and raisinf]^ an insurrection, in order 
to forward copies all over the country ; and he was allowed to 
say unreproved, ^ *' I could give other evidence, but will not, 
" because of other things which are not fit to be known 
" yet." ^ Cross-examination in those days was very imperfectly 
understood ; but Gates was obliged to admit that when he 
first saw Coleman before the Council he did not know him, 
and it seemed extremely doubtful whether he ever really 
charged him before the Council with the matters to which he 
swore at the trial. ^ Bedloe swore to a variety of treasonable 
speeches of Coleman's, and to having himself carried letters, 
which he said were treasonable, from Coleman to P^re la 
Chaise. Coleman's defence was feeble in the extreme, as 
was the case with most of the prisoners. He said that Gates 
and Bedloe were great liars. He also said that, as Gates 
would not fix himself to particular days, he would not con- 
tradict him by proving an alibi. He apologised for his 
letters. He began in a feeble way to make some remarks on 
the improbabilities of the charge ; on which Scroggs rudely 
internjpted him : — ^ " What a kind and way of talking is 

1 7 Si. Tr. 1—78. 

' Oatcs's (;vi(l(!ii((!, p. 18 ; Bedloe's, p. 80. They were frequently recalled. 

3 7 Kt. Tr. 21. ^ Jb. 21. » lb. 25. « lb. 81—83. "^ lb. fO. 

C 2 



3^^ TRIAL OF IRELAND, PICKERING, AND GROVE. 

Chap. XL " this! You have such a swimming way of' melting words 
" that it is a troublesome thing for a man to collect matter 
" out of thee," &c. Finally he was convicted and executed. 
The ^ trial of Ireland, Pickering, and Grove took place on 
the 17th December. They were the persons who were said 
to have undertaken to murder Charles II. The evidence 
against them was that of Gates and Bedloe, wholly uncorro- 
borated by any other witnesses whatever. They repeated 
what they had said before, fixing the prisoners with the 
scheme of murdering Charles. Bedloe ^ swore that there 
was a meeting, at which Ireland was present, '' at the end of 
" August or beginning of September," to consult as to the 
assassination ; but, guessing that he was to be contradicted, 
he refused to pledge himself as to the time, beyond saying 
that it was '' in August." Ireland had probably heard that 
something to this effect had been stated at Coleman's trial, 
and had done what he could to provide witnesses to show 
that through the whole of August he was in Staffordshire. 
^ He did call one or two such witnesses, but he said that his 
imprisonment had been so short that he could send for no 
one; and on calling his first witness he observed, *'It is a 
" hundred to one if he be here, for I have not been permitted 
*' so much as to send a scrap of paper." All the prisoners 
were convicted and executed. 

The next of the trials was ^that of Green, Berry, and 
Hill, for the murder of Godfrey. This was a very curious 
trial. The principal witness was Prance, who described in 
minute detail how the prisoners enticed Godfrey into a 
yard adjoining Somerset House (then the palace of Queen 
Catharine) ; how he was murdered there, and how his body 
was concealed, first in a neighbour's house, and afterwards in 
Somerset House itself, until it was carried into the fields 
where it was afterwards found. ^ According to his own ac- 
count, Prance was consulted before the murder, was present 

1 7 St. Tr. 79—143. _ '- Ih. 109. 

^ Ih. 121, &c. On Oates's second trial for perjury in 1685, Ireland's absence 
from Jjondon through August and part of September was proved by a great 
number of witnesses, who traced all his movements from day to day, giving, 
by the way, a singularly vivid and authentic account of the life of country 
gentlemen in the Long Vacation in 1678. ^ 7 St. Tr. 159. 

5 Ih. 169. As to his recantation, see pp. 176, 177, 209. , 



TRIAL OF THE FIVE JESUITS. 389 

at the completion of the murder, though not at the whole of Chap. XI. 
it, and helped to conceal the body. Prance, before giving his 
evidence, retracted and reasserted it more than once. In 
some circumstances of his story he was confirmed by inde- 
pendent witnesses. In one very important one, as to the 
temporary disposal of the body, he was contradicted. One 
of the persons accused gave somewhat confused evidence of 
an alibi. ^ Bedloe swore that he had been a party to a con- 
spiracy of Jesuits to murder Godfrey, and that after the 
murder he saw the body dead in Somerset House. Upon 
two rather important collateral points Prance was corrobo- 
rated. He said that Green, one of the prisoners, inquired for 
Godfrey at Godfrey's house, and this was corroborated by 
2 Godfrey's servant ; and he also gave ^ an account of a meeting 
he had at Bow with certain priests and two of the prisoners, 
which was * to some extent corroborated by witnesses and by 
the admissions of the prisoners when questioned. They were 
all convicted and executed. 

The trial of the five Jesuits (Whitehead, the Provincial of 
the Jesuits in England, Harcourt, Fen wick, Gavan, and 
Turner) on the 13th June, 1679, and that of Langhorn, the 
barrister, on the following day, may be noticed together, as 
much the same facts' were proved by the same witnesses. 
The witnesses in each case were Gates, Dugdale, and Bedloe. 
The substance of their evidence was that the Jesuits had 
been guilty of the treasonable conspiracy sworn to in the 
earlier cases, and that Langhorn was also a party to it, acting 
as a sort of registrar of their resolutions, and in particular 
receiving and distributing a number of commissions issued 
by the General of the Jesuits to a variety of persons of 
distinction in England. 

In each case the witnesses were contradicted in several 
particulars. The principal contradiction wa3 that, whereas 
Gates swore that he was at a " consult " of the Jesuits at 
the " White Horse " tavern on the 24th April, 1678, he was in 
truth on that day, and fur a long time befcjre and afterwards, 
at St. Omers. ^ As many as sixteen witnesses wore called on 

^ 7 St Tr. 179. ' Eli7:abeth Curtis, xb. 18fl. 

» lb. 174, 17j. < lb. 187-101. * ^b. 869—879. 



390 TRIAL OF SIR GEORGE WAKEMAN. 

Chap. XI. this point ; and there were some other contradictions quite as 
circumstantial, and nearly as important. The witnesses were 
faintly contradicted by ^ some witnesses who spoke of having 
seen Gates in London about that time, but much of their 
evidence was hearsay and uncertain. In each case the 
prisoners were convicted and executed. ^Q^tes was after- 
wards (in 1685) convicted of perjury on much the same evi- 
dence. It is curious to contrast the manner in which Jeffreys 
spoke of his evidence on different occasions. As Recorder 
of London, he sentenced the five Jesuits in 1679. He then 
said : — ^ ''Your several crimes have been so fully proved against 
" you, that truly I think no person that stands by can be in 
" any doubt of the guilt : nor is there the least room for the 
" most scrupulous man to doubt of the credibility of the 
'' witnesses that have been examined against you ; and sure I 
" am you have been fully heard, and stand fairly convicted 
" of those crimes you have been indicted for." 

In 1685, as Lord Chief Justice, he ended his summing-up 
in Oates's trial for perjury thus : — ^ ''And sure I am if j^ou 
" think these witnesses swear true, as I cannot see any colour 
" of objection, there does not remain the least doubt but that 
" Gates is the blackest and most perjured villain that ever 
" appeared upon the face 'of the earth." 

^ The trial of Sir George Wakeman, the Queen's physician, 
and three other persons. Marshal, Rumney, and Corker, took 
place on the 18th July, 1679. They w^ere charged with 
treason in taking part in the plot. Wakeman was to have 
poisoned the King ; Marshal and Rumney were to have paid 
£6,000 towards the purpose of the plot; and Corker was 
to have assisted. On this occasion ^ Gates swore that he saw 
a letter from Wakeman to Ashby, a Jesuit, most of which 
was about " how he should order himself before he w^ent to 
" and at the Bath ; " but besides this, " in his letter Sir George 
*' Wakeman did write that the vQueen would assist him to 
" poison the King." Gates said that a day or two afterwards 
he saw Wakeman write another letter, which he perceived 
was in the same hand as the treasonable letter. He also 

1 7 St. Tr. 396, &c. = 10 lb. 1079. » 7 lb. 488. 

^ 10 lb, 1226. 5 7 Y6. 591. « 75, 619-621. 






i 



SIR GEORGE WAKEMAN— LORD CASTLEMAINE. 391 

swore that being at Somerset House on treasonable business Chap. XI. 
with several Jesuits, he stayed in an outer room whilst they 
went to see the Queen in an inner room, and that he heard 
" a woman's voice say that she would assist them in the pro- 
" pagation of the Catholic religion with her estate, and that 
" she would not endure these violations of her bed any longer. 
' ' and that she would assist Sir George Wakeman in the poisoning 
" of the King." Fortunately for himself, Sir George Wakeman 
had not written the letter for Ashby himself, but had dictated 
it to his servant, ' Hunt. Ashby took it (apparently under 
the name of Thimbleby) to Chapman, an apothecary at Bath, 
who read it and tore off and kept the prescription. Hunt 
proved that the prescription was in his handwriting; and 
^Chapman proved that the body of the letter was in the 
same hand as the prescription, that it said nothing about 
murdering the King, and that so far from prescribing a milk 
diet, as Gates said it did, it prescribed a different kind of 
treatment ; a milk diet he added would have been inconsis- 
tent with Bath water. ^ It was also proved that when Gates was 
before the Privy Council he had said upon hearsay that 
Wakeman had had a bribe to poison the King. Wakeman 
had denied it, and Gates had been asked whether he knew 
any more against Sir G. Wakeman ; to which he replied, 
'' God forbid that I should say anything against Sir G. 
" Wakeman, for I know nothing more against him." There 
was other evidence in the case which I need not notice. The 
prisoners were all acquitted. 

* Lord Castlemaine (who, being an Irish peer, was tried in 
England as a commoner in the King's Bench) was tried June 
23, 1680. Gates was the principal witness against him, and 
swore he had seen letters in the prisoner's handwriting about 
" the design," which, said Gates, meant the treasonable design 
he had deposed to on other occasions. Gates was to some 
extent corroborated by Dangerfield, a person if possible more 
infamous than himself. Dangerficld's competence as a wit- 
ness was objected to on the ground of his infamy, he having 
been convicted of felony and burnt in the hand ; but as he 
had been pardoned, he was admitted as a witness. The records, 
1 7 m. Tr. 648. » Ih. 646—647. ' lb. 661. •• Ih. 1067. 



392 LORD STAFFORD. 

Chap. XI. however, were admitted against his credit, and ^ it appeared 
that he had been burnt in the hand for felony, pilloried as a 
f heat, and convicted on three indictments for coinage offences. 
A record was also produced which showed that Gates had 
accused a man at Dover of an odious offence, and that the 
prisoner had been acquitted. He was contradicted on another 
point besides. This so much shook the credit of the witnesses 
that Lord Castle main e ^ was acquitted. 

The last of the trials for the Popish Plot which I shall 
mention was that of ^Lord Stafford before the House of Lords. 
It was much the longest (it lasted five days) and also much 
the fullest of all. The whole story of the plot was gone into 
at immense length. Stafford's participation in it rested 
principally on the evidence of one Turberville. He and the 
other witnesses were contradicted. The witnesses who con- 
tradicted them were contradicted, and the contradictions even 
went one step further. Thus Dugdale swore against Lord 
Stafford. Many witnesses were called by Lord Stafford to 
prove that Dugdale was unworthy of credit. Witnesses were 
called by the prosecution to set up his character, and especially 
Southall, a coroner and magistrate who received his evidence 
originally. Lastly, Lord Ferrers was called by Lord Stafford 
to testify that Southall '"'is counted a very peraicious man 
" against the Government." The prisoner was ultimately con- 
victed by fifty-five votes against thirty-one. He was after- 
wards executed. 

The result is that in two years, and in connection with one 
transaction, six memorable failures of justice, involving the 
sacrifice of no less than fourteen innocent lives, occurred in 
trials held before the highest courts of judicature under a 
form of procedure closely resembling that which is still in 
force amongst us. It is a matter of great importance to con- 
sider how far this is to be ascribed to individuals, how far it 
was due to defects inherent in the system under which it 
occurred, and how far the defects in the system have been 
remedied. 

1 7 >S'^. Tr. 1102. 

- He was proceeded against for treason In 1689, in going as ambassador to 
Kome in James II. 's reign, 12 St. Tr. 897. 
37/0. 1294. 



REMARKS ON TRIALS FOR GODFREYS MURDER. 393 

The first point to be referred to is the influence of popular Chap. XI. 
passion over the administration of justice. The effect of this 
may be traced more or less in all the trials for the Popish 
Plot, though it is fair to say in different degrees. That there 
actually was a Popish plot, in the sense of a conspiracy, of 
which the King was the principal member, to bring in the 
Roman Catholic religion, is undoubtedly true ; indeed it is 
probable that, if the real relations between Louis XIV. and 
Charles II. had been known then as they are known now, the 
Revolution would have been antedated by ten years. It is, I 
think, highly probable that a certain number of desperadoes of 
infamous character did connect themselves with the Catholic 
party, and were in the habit of indulging in wild schemes and 
wild talk about the reestablishment of their religion. Worse 
men than Gates, Bedloe, Dugdale, Dangerfield, and Turber- 
ville never lived in the world ; but all of them w^ere more 
or less conversant with the Catholics, and Gates did pass a 
considerable time amongst the Jesuits both in Spain and in 
France. Lord Macaulay's reasons for believing that Godfrey 
w^as murdered by men of this stamp appear to me unanswer- 
able. It ought, moreover, to be remembered that in April, 
1G79, ^a desperate attempt to murder Arnold, a Monmouth- 
shire justice who had made himself conspicuous by his anti- 
Popish zeal, was actually made in London by one Giles, and 
all but succeeded. The impression left on my mind by the 
trial of Green, Berry, and Hill certainly is that Prance, 
though an infamous liar (he afterwards pleaded guilty to 
perjury on this trial), was a party to the murder, though he 
put it upon innocent persons. I should think it not at all 
improbable that Gates himself was the murderer or the 
contriver of the murder. This would account for Prance's 
retractations, and for the extremely minute, coherent account 
lie gave of the transaction. His knowledge of the circum- 
stances, as to which he was corroborated, showed that he 
was connected with and knew the movements of priests and 
others wliom, in the tlien state of public feeling, he could 
accuse with plausibility. In these circumstances it is not 
surprising that a panic should have been produced which 

1 See the trial of Giles, 7 St. Tr. 1129. 



394 REMARKS ON TRIAL OF LORD STAFFORD. 

Chap. XI. predisposed juries to believe any revelations which might be 
made by pretended accomplices. 

These considerations fully explain, and to a considerable 
extent palliate, the conduct of the jurors who convicted Cole- 
man and the persons accused of the murder of Godfrey ; and 
perhaps the same may be said of the jurors who tried Grove, 
Ireland, and Pickering, though this is more doubtful, as their 
guilt depended entirely on the evidence of accomplices as to 
words spoken. For the jurors who convicted the five Jesuits 
and Langhorn, in the face of the witnesses who contradicted 
Gates on the principal point in his evidence, it is difficult to 
admit any excuse whatever; for to say that their verdicts 
represented the furious bigotry which led the juries of that 
time to reject the evidence of all Roman Catholics is to 
condemn them. The acquittals of Wakeman and Lord 
Castlemaine were creditable as far as they went; but, in 
my opinion, the worst verdict given by any jury, was a 
venial error in comparison with the injustice of the fifty- 
one peers who convicted Lord Stafford. The first panic had 
long subsided at the time of the trial. After his evidence 
on Wakeman' s and Lord Castlemaine 's trials, Gates ought 
never to have been believed again. The only witnesses who 
pretended to fix Lord Stafford with treason were, according 
to their own evidence (which in many points was contradicted), 
accomplices swearing to words spoken. To give a single illus- 
tration, ^ Dugdale swore that on the 20th or 21st September, 
1678, Lord Stafford offered him £500 to kill the King. Lord 
Stafford called a witness who brought Dugdale to him on the 
occasion in question, explained every circumstance connected 
with the interview, and declared that he was present at the 
whole of it, and that nothing of the sort was said ; and this 
witness was materially corroborated as to part of his evidence 
by another. The general accuracy of this evidence was not 
disputed, but it was suggested as possible that Lord Stafford 
and Dugdale might have been alone together for a moment, 
in which the offer might have been made. It is humiliating 
to think that English noblemen should have convicted one of 
their own number of high treason because a man who, by his 
1 7 St. Tr. 1343—1346, and see 1386—1391 and 1500. 



BEHAVIOUR OF SCROGGS. 395 

own account, was a traitor and a murderer in intention, charged Chap, XI. 
hira with having taken advantage of their being alone to- 
gether for a moment to say, " I will give you £500 to kill 
the King." 

Passing from the jurors to the judges and counsel, it 
must be admitted, in the first place, that Scroggs, who 
presided at all the trials, was guilty of some mis- 
behaviour which compares unfavourably even with the 
brutality of Jeffreys. His summings-up in the cases of 
^ Ireland, Pickering, and Groves, and in the trial of the 
five Jesuits, can be described only as infamous. The first 
is full of attacks on the Roman Catholics, disgusting in the 
mouth of a judge on a capital trial, and the second is such 
a speech for the prosecution as no counsel in the present day 
would make. Besides this, he continually checked and sneered 
at the prisoners when on their trial. I must, however, say in 
justice to Scroggs that, disgusting as his manner was, I am not 
prepared to say that he strained the law as it then stood. What 
strikes a modern lawyer as the most questionable thing done 
by him occurred on the trial of Ireland, Pickering, and Grove. 
Two leading Jesuits, Whitehead and Fenwick, were indicted 
with them and were given in charge to the jury and tried. ^ At 
the end of the case it appeared tha?t there was only one wit- 
ness against them. Upon this Scroggs discharged the jury of 
them and recommitted them ; and they were afterwards tried 
and executed for the same treason. Whitehead urged that he 
had been given in charge once, and ought not to be tried 
again ; but the whole Court held, without hesitation, that 
there was nothing in the objection. The whole law upon this 
subject was elaborately considered a few years ago, ^ in R. v. 

^ 7 St. Tr. 131 — 134 and 411 — 41.'). Here is a specimen of Scroggs'a 
attacks on the Roman Catholics : — "This is a relif^ion that (^uite unhinges all 
'* piety, all morality, and all conversation, and to be abominated by all man- 
" kind. Th(7 ejit their God, thoy kill their King, and saint the murderer." 

- 7 *SY. 7V. Ill), and see the subsccjuent proceedings at p. 315. 

» L. R. 1 Q. B. 289. In 2 Jlulc, /'. C. p. 295, the following passage 
occurs ; after noticing some aneictnt authorities against the discharge of tlie 
jury, he says : " liut yet the contrary cf)urse liath for a long time prevailed at 
"Newgate. Nothing is n)ore ordinary than after the jury is sworn and 
"charged witli a prisoner and tlicf evidence given, yet if it appjars to tho 
"('ourt tliat some of the evidence is kept back, or taken oil", or that there 
"may be a fuller discovery, and the olfunce notorious, as murder or burglary, 



39^ DECENCY OF TRIALS OF GILES AND LORD STAFFORD. 

Chap. XL Winsor, when it appeared, from many authorities, that the 
practice had fluctuated. 

It should also be observed that, whatever may have been 
his motives, Scroggs did turn against Gates and Bedloe, 
and did powerfully help in their final exposure and dis- 
comfiture by the acquittal of Sir George Wakeman and Lord 
Castlemaine, to each of which results he contributed vigorously. 
This is usually attributed to subserviency to Charles II., but 
it was conduct good in itself, and required courage, ^ He was, 
indeed, proceeded against both before the Privy Council and 
in Parliament on this subject, and ran a considerable risk of 
impeachment. 

Some points connected with the conduct of the judges in 
these cases deserve more notice than- so far as I am aware, 
they have received. Two of the trials connected with the 
plot were conducted with conspicuous fairness and decency. 
Gne of them was the trial of Giles for the attempt to murder 
Arnold, the Monmouthshire magistrate — an act extremely 
like the murder of Sir E. Godfrey, except in the point that it 
did not succeed. In this trial the presiding judge was 
Jeffreys, who sat as Eecorder of London. The other was the 
trial of Lord Stafford. I do not think that even in our own 
times a prisoner could be treated with greater tenderness, 
consideration, and courtesy. The presiding judge was ^ Lord 
^Nottingham, who acted as Lord High Steward on the occasion ; 
yet this most courteous and humane proceeding ended in what 
I think must be regarded as by far the most inexcusable of all 
the verdicts given in connection with the Popish Plot. 

I do not think much censure attaches to the counsel for 
the Crown for their conduct in these trials. They were un- 
doubtedly zealous, and they did not abstain from the popular 
topics as to Roman Catholics, Jesuits, the doctrine of equivo- 
cation, and the like, but I know of no behaviour on the part 

"and that the evidence, though not sufficient to convict the prisoner, yet 
"gives the Court a great and strong suspicion of his guilt, the Court may 
"discharge the jury of the prisoner, and remit him to the gaol for further 
" evidence ; and accordingly it has been practised in most circuits of England, 
" for otherwise many notorious murders and burglaries may pass unpunished, 
" by the acquittal of a person probably guilty, where the full evidence is not 
" searched out or given." 

1 8 ,S'^. Tr. 163. 

2 jje ^as Lord Chancellor at the time, and his title was Lord Finch. 



LIGHT IN WHICH PRISONERS WERE REGARDED. 397 

of any one of them which can be fairly compared to that of Chap. X7 
Coke on the trial of Raleigh. 

One great leading cause of the result of these trials 
is, I think, to be found in the defects of the system of 
criminal procedure which was then in full vigour, and which, 
even to this day, is in force, theoretically though not practi- 
cally, to a greater extent than is generally supposed to be the 
case. The prisoner was looked upon from first to last in a 
totally different light from that in which we regard an accused 
person. In these days, when a man is to be tried, the jury 
are told that it is their first duty to regard him as being 
innocent till he is proved to be guilty, and that the proof of 
his guilt must be given step by step by the prosecution, till 
no reasonable doubt can remain upon the subject. This 
sentiment is both modern and, in my opinion, out of harmony 
with the original law of the country. No one can be brought 
to trial till a grand jury has upon oath pronounced him 
guilty, as the form of every indictment shows. " The jurors 
" for our Lady the Queen, upon their oaths, present that A, 
" wilfully, feloniously, and of his malice aforethought, did kill 
"and murder B." Why should a man be presumed to be 
innocent when at least twelve men have positively sworn 
to his guilt ? In former days, as I have already shown, the 
presentment of a grand jury went a long way towards a 
conviction, and a man who came before a petty jury under 
that prejudice was by no means in the same position as a 
man against whose innocence nothing at all was known. In 
nearly every one of the trials for the Popish Plot, and, indeed, 
in all the trials of that time, the sentiment continually dis- 
plays itself, that the prisoner is half, or more than half, 
proved to be an enemy to the King, and that, in the struggle 
between the King and the suspected man, all advantages are 
to be secured to the King, whose safety is far more important 
to the public than the life of such a questionable person 
as the prisoner. A criminal trial in those days was not 
unlike a race between the King and the prisoner, in which 
the King had a long start and the prisoner was lioavily 
weighted. 

The following were the essential points in the procetnlings 



39^ prisoner's position. 

Cmap. XI. wliicli establish this view. First, the prisoner as soon as he 
was committed for trial might be, and generally was, kept in 
close confinement till the day of his trial. He had no means 
of knowing what evidence had been given against him. He 
was not allowed as a matter of right, but only as an occa- 
sional, exceptional favour, to have either counsel or solicitors 
to advise him as to his defence, or to see his witnesses and 
put their evidence in order. When he came into court he 
was set to fight for his life with absolutely no knowledge of 
the evidence to be produced against him. Any one who has 
ever acted as an advocate knows what it is to be called upon 
to defend a man at a moment's notice. Under such circum- 
stances, a modern barrister has usually at least a copy of the 
depositions. To defend a prisoner efficiently is a task which 
makes considerable demands on the readiness, presence of 
mind, and facility of comprehension of a man trained to pos- 
sess and use those faculties. That an uneducated man, whose 
life is at stake, and who has no warning of what is to be said 
against him, should do himself justice on such an occasion is 
a moral impossibility. But this was what was required of 
every person tried for high treason in the seventeenth cen- 
tury. None of the prisoners tried for the Popish Plot, except 
Lord Stafford and Sir George Wakeman, defended themselves 
even moderately well. Langhorn, who was a barrister, lost 
his head so completely that he did not cross-examine Gates 
as to the arrangement of his chambers, which was said to be 
such that Gates could not possibly have heard and seen what 
he said he heard and saw there — a circumstance on which 
Scroggs afterwards relied as a justification of his conduct in 
disbelieving Gates. When an experienced lawyer defended 
himself so feebly, it is not surprising that inexperienced 
persons should have been utterly helpless. 

That the prisoner's witnesses were not permitted to be 
sworn was even in those days considered as a hardship, and 
the jury were told in all or most of the trials to guard against 
attaching too much weight to it. The advantage which 
that state of the law gave to fraudulent defences, which might 
be set up without any risk of a prosecution for perjury, seems 
to have been stupidly overlooked. It was also a common 



PKINCIPLES OF EVIDENCE NOT UNDERSTOOD. 399 

topic of complaint that prisoners had no copy of the indict- Chap. XL 
ment against them, or of the pannel of jurors ; but I think 
the importance of these matters was overrated. A copy of 
the indictment would only have enabled prisoners to make 
little quibbles, which the judges would have overruled, and 
would have been right in overruling; and a copy of the 
pannel is of no real use to a prisoner. If the sheriff wishes 
to pack a jury, he must be very clumsy if he does not provide 
a sufficient number of partial jurors, free from any legal objec- 
tion, to allow for thirty-five peremptory challenges. If, on 
the other hand, he is fair, one juryman is practically as good , 
as another. The real grievance was keeping the prisoner in 
the dark as to the evidence against him. Theoretically this 
grievance still exists, though practically it has long since 
been removed. As the law still stands, a bill might be sent 
before a grand jury without notice to the person accused. 
The bill being found, the person accused might be arrested 
merely on proof of his identity ; he would not be taken 
before a magistrate, and until he was put in the dock to take 
his trial he would have no legal right to know who were the 
witnesses against him, or what they had said, or even to have 
a copy of the indictment. 

These defects in the system of trial in the seventeenth 
century, I own, strike me as being almost less important 
than the utter absence which the trials show of any concep- 
tion of the true nature of judicial evidence on the part of the 
judges, the counsel, and the prisoners. The subject is even 
now imperfectly understood, but at that time the study of 
the subject had not begun. I do not think any writer of 
the seventeenth century has anything of importance to say 
about it. Hale tells a trifling anecdote or two about mis- 
taken convictions, the result of which is that in trials for 
murder the body of the person murdered ought to be proved 
to have been seen after death ; but he obviously knew 
nothing at all of the theory of the subject. It is stated 
in various places in the State Trials that people ought 
not to be convicted on hearsay, and it was an established 
rule, regarded as highly important, that there must bo two 
witnesses in treason ; but, subject to these small rules, the 



400 OPINIONS AS TO VALUE OF OATHS. 

Chap. XI. opinion of the time seems to have been that if a man came 
and swore to anything whatever, he ought to be believed 
unless he was directly contradicted. The greater part of 
the evidence given in the trials for the Popish Plot consists 
of oaths by Oates, Bedloe, and others, that they heard 
this man or that say he would kill the King, or that 
they read letters to the same effect, which, upon mentally 
comparing them with letters written by the accused, they 
perceived to be in the same handwriting. 

The remarks which in the present day would occur upon 
such evidence, and which seem to us almost too obvious to 
be made, are that it would be wholly unsafe to act upon it, 
even if it were given by witnesses who were not accomplices. 
To convict any man of treason simply because two persons 
swore that on two separate occasions he made separate 
treasonable overtures to them, there being no corroboration 
whatever of their statement, would put every honest man's 
life at the mercy of every pair of villains in the country. If 
the evidence were given by accomplices, the jury would be 
told to pay no attention to it unless it was corroborated by 
independent evidence ; but this does not seem to have occurred 
to the judges and juries of the seventeenth century. The 
judges continually say that no doubt accomplices are bad 
men, but that if their evidence is not taken crimes will not 
be discovered ; and the juries seem to have thought (as they 
very often still think) that a direct unqualified oath by an 
eye- or ear-witness has, so to speak, a mechanical value, and 
must be believed unless it is distinctly contradicted. This 
is strongly illustrated by the circumstance that the objections 
made by the accused persons to the evidence against them 
almost always took the form of objections addressed to the 
court to the competency of the witnesses and not of objections 
to their credit addressed to the jury. If the court regarded 
a man as "a good" {i.e. a competent) ''witness," the jury 
seem to have believed him as a matter of course, unless he 
was contradicted, though there are a few exceptions. ^ In 
Lord Castlemaine's case, for instance, Dangerfield's evidence 
was left to the jury, though he had been previously convicted 
1 7 St. Tr. 1110. 



NECESSITY OF COEROBORATION UNNOTICED. 4OI 

of " six great enormous crimes." They were, however, told Chap. XI. 
they need not believe him, and they did not. 

The most remarkable illustration of these remarks is to be 
found in the trial of the ^ five Jesuits. Fenwick objected that 
the evidence against him was entirely composed of accounts of 
the contents of letters not produced. '' All the evidence that is 
" given comes but to this : there is but saying and swearing. 
" I defy them to give one probable reason to satisfy any 
" reasonable man's judgment how this can be." Upon this 
Scroggs observed : " Mr. Fenwick says to all this, here 
" is nothing against us but talking and swearing ; but for 
'' that he hath been told (if it were possible for him to learn) 
" that all testimony is but talking and swearing, for all 
'* things, all men's lives and fortunes, are determined by an 
" oath, and an oath is by talking, by kissing the book and 
" calling God to witness to the truth of what is said." 

I think that Fenwick was right as to what the law, or 
rather the practice of juries, ought to be, and that Scroggs 
was right as to what it actually was and, to a certain extent, 
still is. It is true that juries do attach extraordinary im- 
portance to the dead weight of an oath. It is also true, so 
at least I think, that a consideration of the degree to which 
circumstances corroborate each other, and of the intrinsic 
probability of the matter sworn to, is a far better test of truth 
than any oath can possibly be, and I should always feel great 
reluctance to convict a prisoner on the uncorroborated testi- 
mony of a single witness to words spoken, or to any other 
isolated fact which, having occurred, leaves behind it no 
definite trace of its occurrence. 

The principle that the uncorroborated evidence of an 
accomplice is not to be acted upon, which is now well estab- 
lished, though it cannot be said to have the force of a positive 
rule of law, seems to have been unknown, and was at all 
events systematically disregarded and even disavowed in the 
seventeenth century. If observed, it would have prevented 
every one of the unjust convictions referred to. 

The inference suggested by studying the trials for the 

1 Whitbread, Harcourt, Fenwick, Gavan, and Turner, 7 St. Tr, 811, 358, 
411. 

vol.. I. D D 



402 PERJURY. 

Chap. XI. Popish plot is not so much that they show that in the 
seventeenth century judges were corrupt and timid, or that 
juries were liable to party spirit in political cases, as that 
they give great reason to fear that the principles of evidence 
were then so ill understood, and the whole method of criminal 
procedure was so imperfect and superficial, that an amount of 
injustice frightful to think of must have been inflicted at 
the assizes and sessions on obscure persons of whom no one 
ever has heard or will hear. A perjurer in those days was 
in the position of a person armed with a deadly poison which 
he could administer with no considerable chance of detection. 
What the political trials of the seventeenth century really did 
was to expose men of high rank and conspicuous position to the 
calamities which must have been felt by thousands of obscure 
criminals without attracting even a passing notice. The 
truculence of Jeffreys, the time-serving cowardice of Scroggs, 
and the fierce prejudice of some of the jurors were, so at 
least we must hope, exceptional ; but the light which these 
trials throw on what must have happened in the common 
routine of the administration of criminal justice is a far more 
serious matter. 

In some matters to which the public would perhaps 
attach more importance than professional persons, the rules 
of evidence in the seventeenth century were administered 
in a way which might be regarded as more favour- 
able to the prisoner than our modern practice. Evidence 
was not confined to the issue with anything like the modern 
strictness. For instance, prisoners were allowed to prove 
almost anything by way of discrediting a hostile witness. On 
the other hand, cross-examination to credit was practically 
unknown, though the judges appear to have varied and to have 
been at times partial in their practice in relation to this 
matter. When Oates was tried for perjury, he was stopped as 
soon as he asked a witness any question tending " to ensnare 
him." In our times this practice has been reversed. A 
witness may be cross-examined to his credit to any extent, 
but the rule is that his answer must be taken, and that if he 
swears falsely the remedy is to indict him for perjury. This, 
however, was not established till comparatively modern times. 



DANGERS OF PERJURY. 4O3 

I do not think that the power or danger of perjury has chap.xI. 
been by any means removed since Oates's time. I am not 
sure that it has been as much diminished as we are accus- 
'tomed to beHeve. Cross-examination will no doubt defeat 
it in some cases. If Gates and the others had been cross- 
examined with what would now be considered even a 
moderate degree of skill, they could scarcely have been be- 
lieved, and they must either have exposed themselves to con- 
tradiction or have forfeited all credit by forgetting everything 
upon which they could be contradicted ; but practice and time 
are essential to the efficiency of cross-examination, and with- 
out proper instructions to the cross-examiner it is to the last 
degree dangerous to a prisoner's interests. In the seventeenth 
century the judges seem to have done most of the cross-ex- 
amination ; the prisoner could have no instructions, ^ and it was 
a rule that trials must be finished at a single sitting. 

It must, however, be admitted that under particular circum 
stances no really effectual protection against perjury ever has 
been or ever can be devised. If all the circumstances except 
one are consistent either with guilt or innocence, and that one 
circumstance depends on the testimony of a single alleged eye- 
•or ear-witness to an act done or words spoken, of which no 
assignable trace remains, it is impossible to prevent or detect 
perjury. - Suppose, for instance, there is a violent riot, and 
many persons are present merely as innocent bystanders, how 



^ Lord Stafford's trial before the House of Lorfls lasted for five days ; but iu 
JiOrd Delaniere's trial before Jeffreys, as Lord High Steward, Jeffreys refused 
to adjourn for the night, saying that he gi-oatly doubted whether or not he had 
power to do so. The right of the court to adjourn in cases of treason or 
felony was not fully established till the treason trials of 1794. In Scotland 
in 1765, in the case of Nairne and Ogilvie, the court sat forty-three hours 
(19 St. Tr, 1326), never rising. An objection was taken to the conviction on 
the ground that the jury rose for about half an hour for refreshinent ; this, 
however, was overruled. 

'■* In the case of R. v. Lyons and eight others, tried at the Old Bailey, in 
February, 1863, for pn-acy and murder, the evidence showed that the prisoneif, 
who were sailors on the ship bVoivcry Land, mutinied, murdered the capbiin 
and mate, scutth-d the ship, and went off in a boat. When the captain was 
killed, the carpenter, Andersen, a Norwegian, was knocked down with a hand- 
spike. He swore that one of tiu' prison(!rs, Marcelino, afterwards said (o him, 
" M(! strike you." 'I'his was tlie only evidence of Miircflino's connection with 
the erime. Me was nevertheless convicted ; but he aftcrwardH receive(l a free 
[)ardon, as it was thought that a Norwegian's impression of what a Spaniard 
•said in broken Knglisii was not evidefxie sufficiently weighty to justify a capital 
<;onviction.— 69 C. U. C. Sessions /'aper$, 276, 286. 

D D 2 



404 TRIAL OF FITZHARRIS. 

Chap. XI. can one such bystander defend himself against a witness who 
falsely swears that he saw him strike a blow or throw a stone,, 
or that he heard him encourage others to do so ? 

The observations which arose upon the trial for the Popish 
plot apply to the trials which took place between 1680 and 
1688. All or most of them •were conducted in the same way 
and upon the same principles of procedure, but they were in 
themselves so memorable that I will make a few observations 
upon some of the most important of them. 

The first of the trials to be noticed is ^ that of Fitzharris, 
who was tried in 1681 for treason, in publishing a pamphlet 
accusing Charles IT. and his brother of ^ ''confederacy with 
" the Pope and the French to introduce Popery and arbitrary 
** government," and calling on the nation to ''up all as one 
" man, look to your own defence e'er it be too late," with 
much other violent language to the same effect. He pleaded, 
first, that he was impeached for the same offence, and that 
the impeachment was still pending ; but this plea was ^ over- 
ruled on argument, the Court giving no reasons. This pro- 
ceeding was severely and, I think, justly criticised. He was 
then tried, convicted, and executed. About the facts there 
was no doubt. Fitzharris had made a proposal to one Everard 
to write the pamphlet. Everard invited Fitzharris to his 
chambers in Gray's Inn, to give him instructions, and con- 
cealed people there to hear what passed. Fitzharris gave 
instructions at one meeting and corrected the draft at a 
second. The object with which the pamphlet was written 
was, according to Everard, to stir up a civil war in England, 
which would enable Louis XIV. first to gain Flanders, ^ " and 
" then we shall make no bones to gain England too." Fitz- 
harris's defence in substance was that the pamphlet was 
written by the orders of Charles II. ; that he meant to send 
it to the leading men of the exclusionist party, and to have it 
found in their possession as evidence against them to be used 
on occasion. ^ This seems, on the whole, to have been what 
he meant to suggest by a number of witnesses whom he called, 

1 8 St. Tr. 243. ^ /j^ 333^ ^nd see 357. ^ /j. 326. 4 /§_ 345^ 

5 See some remarks by Sir J. Hawles, pp. 439 — 440 ; and see 378 for Fitz- 
liarris's defence. 



TRIAL OF STEPHEN COLLEDGE. 405 

though he put the matter in rather a different way in his Ciiap. XI. 

defence, alleging that he drew Everard on to write the pamph- 

let in order to give information against him. Fitzharris was 

executed. Hawles observes that both Whigs and Tories 

*' agreed he deserved to be hanged. The first thought it for 

'' their advantage to save him if he would confess; but the 

" last thought it was fit to hang him for fear he would confess." 

The question in respect of which his confession was hoped 

a,nd feared was apparently the degree in which the King and 

other distinguished persons had really been his accomplices. 

The trial is confusing, as Fitzharris only hinted at his defence, 

^nd was obviously weak and timid. One point worth noticing ^ 

in the case is the manner in which he was hampered in his 

<lefence. The Attornej^-General (Sir R. Sawyer) strenuously 

objected to his ^ solicitor assisting him in any way, and indeed 

to his wife being by him. He had a copy of the pannel, with 

•crosses to show whom he was to challenge, which gave special 

offence. Upon this ^said Jeffreys, " God forbid but his 

'' memory should be helped in matters of fact, as is usual in 

" these cases ; but no instructions ought to be given him here." 

It was also remarked that Mr. Fitzharris "had a perfect formal 

" brief," and he was compelled after much discussion, as a sort 

of compromise, to give the papers to his wife, who, however, 

was allowed to stand by him. 

^ The trial of Stephen Colledge is next to be noticed. To 
•do justice to it would require more space than I can afford. 
He was known as "the Protestant joiner," and was accused 
of high treason by Dugdale and others, by way of a counter- 
blast to the Popish plot. It was alleged that he had 

^ A solicitor occupied a low position in those days. '* It is not the duty of 
*' a solicitor to bring papers ; he was only appointed by the court to run of 
" errands ; he was not to advise or furnish with matter of defence " (p. 353), 
said the Solicitor-General. The solicitor was inferior to the attorney, who, as 
his name implied, represented his client. It is odd that "solicitor" should 
have been regarded of late years as the more honourable title. 

2 8 St. Tr. 332. ''Jeffreys : I see it is a perfect formal brief. Mrs. F. : Must 
** he have nothing to hcln himself ? F.: In short, the King's counsel would take 
** mv life away without letting me make my defence. A.-G. : 1 desire not to 
'* take any papers from him if they be such as are permitted by law. S.-O. : 

My lord, his innocency nnist make his defence, and nothing elH(!. Jeffreys. 



My lord, we are in your lordship's judgment, whether you will allow tliese 
papers. L. (J. J. ; Let us see tin; papers. F. : My lord) I will deliver it to 
n)y wife again. L. C. J. : Let it be so." 
« 8 ;S/. Tr. 549. 



406 TRIAL OF STEPHEN COLLEDGE. 

HAP. XI. proposed to Dugdale to murder the King, but the London- 
grand jury threw out the bill against him. Hereupon the 
witnesses swore that at the time of the Oxford Parliament 
he said at Oxford treasonable words in pursuance of hi& 
design. The bill was found by the grand jury of Oxford- 
shire, and after a long and memorable trial Colledge was 
convicted before Chief Justice North, afterwards Lord Keeper.. 
On his way to the trial he was taken into a house and de- 
prived of all the papers provided for his defence, although 
he had been allowed the use of pen, ink, and paper, and the- 
assistance of counsel and solicitor, and to see his friends, by 
the express orders of the King in council. The papers seem 
to have been examined by the King's counsel, who were 
enabled to manage their case accordingly, not calling 
certain witnesses whom Colledge could have contradicted or 
cross-examined. This was one of the most wholly inex- 
cusable transactions that ever occurred in an English court,, 
and leaves a stain on the Lord Keeper's character which 
the many amiable points in it cannot efface. It must be 
owned, however, that it carried the principle that counsel 
were not to be allowed to a prisoner to its logical result. 
Many of the papers were returned to Colledge ; but one, which- 
the judges considered ^"a most seditious libellous speech 
•* to spit venom upon the Government in the face of the 
" country," and also instructions as to examining the wit- 
nesses, were kept from him, as the Chief Justice observed' 
that to let him have them would be " to give you counsel 
" in an indirect way." 

The vigour with which Colledge under these difficulties- 
asserted his rights and defended himself through a sit- 
ting of twelve or thirteen hours was admirable. The evi- 
dence was much the same as in the Popish plot cases. 
Dugdale and others swore that he made treasonable pro- 
posals to them, and ^ other witnesses proved that he had 
spoken unfavourably of Charles II., and justified the Long 
Parliament of 1640 — language which it was absurd to describe 
as treasonable. A mass of contradictory and defamatory 
evidence was brought against the witnesses for the prosecu- 
1 8 .S'^. Tr. 585. 2 n^^ gig. 



TRIAL OF COUNT CONINGSMARK. 407 

tion, and ^ Gates in particular contradicted Dugdale, getting Chap. XL 
into a shameful altercation with him, in which Dugdale com- 
mitted a perjury which was afterwards detected, and which 
prevented his reappearance as a witness. The trial became 
a fierce dispute, made up of contradiction upon contradiction, 
till every one was tired out. The counsel for the Crown, 
however, and particularly the Solicitor-General (Finch) and 
Jeffreys, made elaborate speeches, having the last word. ^ The 
Chief Justice summed up very shortly, saying, " For me to 
" speak out of memory, I had rather you should recur to 
" your own memories and your own notes," showing clearly 
that he had taken no notes. Colledge, indeed, pressed him 
to refer to his notes, which he refused to do. Colledge was 
convicted and executed. 

The trial of Colledge may, I think, be put on a level with 
that of Lord Stafford in regard of the iniquity of the 
result. The behaviour of the judges, though not brutal, 
was singularly unfair to the prisoner and weak as against 
the counsel for the Crown. 

The long list of political prosecutions which occurred at 
this time is varied by a memorable trial for a private crime, 
namely, the ^ trial of Count Coningsmark for the murder of 
Mr. Thynne. Thynne was a very rich country gentleman, 
then lately married to Lady Ggle. He was shot dead in his 
coach in Pall Mall by Boroski, a Pole, acting under the orders 
and in the company of Lieutenant Stein and Captain Vratz, 
two German officers ; all three being, so to speak, retainers of 
Count Coningsmark. The substantial question in the case 
was whether the Count was or was not an accessory before 
the fact, as there was no question as to the guilt of the 
other three. Charles was known to be favourably disposed 
to the Count, and he was accordingly tried with conspicu- 
ous humanity and favour. Perhaps the most remarkable 

' P. 64L Gates's evidence in this trial was eurions in many ways. He 
deposed for one tiling that he went to the; (Jrown Tavi-ni with Colledge, when, 
** We did, to divert ourselves till dinner came up, enter into a philosophical 
" discourse with one Mr. Havngc." ... "It was concerning the existence of 
•* God, whether that could he nroved by natural demonstration, and whether 
"or no the soul was immortal." He said that on that occasion no treAMOti 
was talked, though one Smith swore the opposite. — 1*. 046 — 647. 

3 712—714. * 9 St TV. 1. 



408 TRIAL OF LORD WILLIAM RUSSELL. 

Chap. XI. circumstance in the case is that the Lord Chief Justice (Pem- 
berton), obviously as a favour to the prisoner, asked him ^ a 
long series of questions through the interpreter, drawing his 
attention to all the suspicious circumstances in the case, and 
asking how he explained them. The counsel complained 
that the interpreter acted as an advocate. The Court said 
that the case was an extraordinary one, as none of the 
prisoners could speak English. The Count was acquitted, 
it has usually been said unfairly. I have little doubt that 
he was guilty ; but I am not quite sure that it was posi- 
tively proved that his friends and their servant did not go 
beyond their instructions. 

Passing over with a bare reference the various angry and 
obviously partisan trials ^ connected with the election of the 
sheriffs of London, in 1682, I pass to the celebrated trials of 
Lord William Russell and Algernon Sidney for treason. ^ That 
both of these eminent persons had been engaged in a con- 
spiracy for an insurrection there seems to be little doubt. 
There is no evidence that they were privy to the Rye House 
plot — Rumbold's scheme for killing Charles and James on 
their way from Newmarket ; but they scarcely denied their 
participation in a conspiracy to levy war against Charles IL 
The witnesses against them were accomplices, namely. 
Lord Howard and, in Lord William Russell's case, Ramsey, 
who, as Hallam remarks, was an unwilling witness. Lord 
Howard was certainly swearing to save his own life, and 
he was permitted, after the manner which prevailed for many 
years after the trial, to tell his story in his own way, the 
result of which was that he made a long and elaborate 
speech. *It was proved by several witnesses that Lord 
Howard had on other occasions denied that Lord W. Russell 
was concerned in the plot. ^ Howard's explanation was that 

1 9 St. Tr. 60—64. 

2^ Pilkington and others for a riot, 9 St. Tr. 187 : Sir Patience Ward for 
perjury, lb. 299. This last was a shameful case, 

2 Lord Macaulay's account of them is comprised in very few words. 
*' Russell, who appears to have been guilty of no offence falling within the 
*' definition of treason, and Sidney, of whose guilt no legal evidence could be 
*' produced, were beheaded, in defiance of law and justice." Mr. Hallam is 
fuller, and I think fairer. See Const. Hist. ii. 457. Lord "W. Russell's 
trial is in 9 aS'^. Tr. b11 . 

^ Ih. 619. 5 /J. 623. 



TRIAL OF ALGERNON SIDNEY. 4O9 

on one occasion he did say what was alleged, out of regard to Chap. XI. 
the Duke of Bedford. As to another occasion on which he 
was said to have sworn to what he said, he declared that 
what he swore to was, that he did not believe Lord W. E-ussell 
had any design to murder the King. In this he said he was 
" carrying his knife close between the paring and the apple." 
^ The prisoner's defence was so weak and hesitating, that it is 
difficult to doubt that the charge made against him was sub- 
stantially true. It is remarkable that he objected to the 
introduction of hearsay evidence as tending to prejudice him, 
an objection which in those days was seldom taken, and 
which, indeed, was opposed to the practice of the courts. 
The jury were told, as they always were, that the prisoner 
was not to be convicted on such evidence. The conduct of 
the judges in this trial was, I think, moderate and fair in 
general. The Chief Justice's direction to the jury was more 
favourable to the prisoner than, according to precedents which 
are still binding, it ought to have been. ^ He told them in 
substance that a conspiracy to levy war against the King 
was not an overt act of conspiring the King's death, unless 
the war to be levied was of such a nature as to expose the 
King to personal danger. 

3 The trial of Sidney much resembled that of Russell. He 
was indicted for compassing and imagining the King's death. 
Three overt acts were charged as displaying this intention, 
namely, — (1) holding consultations amounting to a conspiracy 
to levy war ; (ii) sending Aaron Smith to Scotland to invite 
certain Scotchmen to come and join in the conspiracy; (3) 
composing a treasonable libel, affirming amongst other things, 

^ " He once intended to have related the whole fact just as it was, but his 
■"counsel advised him against it." ..." He was a man of so much candour 
"that he spoke little as to the fact ; for since he was advised not to tell the 
" whole truth, he could not speak against that which he knew to be true though 
"in some particulars it- had been carried beyond the truth." — Burnet, Own 
Ti7n€.% ii. 172, 173. 

- " The question before you will be whether upon this whole matter you do 
^* believe my Lord Russeirhad any (h'sigii upon the King's life, to destroy the 
" King, to take away his life, for tliat is the material part here. It is used 
" and given you (by the King's counsel), as an evidence of tluH, thnt he did 
"conspire to raise an insurrection . . . and to surprise the King's guard, 
" which, say they, can have no other end but to seize and destroy the King, 
" &c."-9 St. Tr. 636. Cf. Foster's Discourse on Tirnso», j). 197, where 
a. wider doctrine is laid down. ' iit» Tr. 9818—1002. 



410 LEGAL QUESTIONS IN SIDNEY'S TRIAL. 

CiiAr. XI. that the King was subject to Parliament, and that '' we may 
" therefore change or take away kings." 

Lord Howard, if believed, proved the first, and less dis- 
tinctly the second, overt act. He gave the same evidence as in 
Lord Russell's case, and was subjected to the same or similar 
contradictions. As to the third, the papers were undoubtedly 
found in the prisoner's study; \and three persons— Sheppard, 
who had seen him endorse bills ; Gary, who knew his endorse- 
ments, and Cook, who cashed bills bearing his endorsement, — 
all proved his handwriting. This was evidence which in the 
present day, would be not only admissible, but practically 
conclusive. It seems, though it is not quite clear ^on the 
report, that " some papers of his particular affairs " were pro- 
duced for comparison. In later times, and down to 1854 (see 
17 & 18 Vic. c. 125, s. 27, and 28 Vict. c. 18, s. 8), this method 
of proof was regarded as improper. But the law of evidence 
'hardly existed in those days, and nothing can be more vague 
and loose than the way in which the matter was handled. 
The most important points were these : — 

(1) It was said that a conspiracy to levy war was not an 
overt act of treason by compassing the King's death. Much no 
doubt might be said in favour of this view ; but the law was 
otherwise interpreted, not only before, but after, Sidney's 
time, particularly in the case of Lord Preston and Ashton, 
who were tried by Chief Justice Holt. 

(2) It was said that there was only one witness, whereas 
there should have been two. I do not think this objection 
was accurately taken. Assuming the possession and writing 
of the pamphlet to be an overt act of treason, it was proved 
by at least four witnesses, namely, ore who found it on the 
prisoner's table, and three who swore it was his handwriting. 

(3) It was said that the possession of the writing was not 
an overt act of treason, as it appeared only that the paper 
was in the prisoner's study, and not that he had published 
it, or that he meant to publish it, in furtherance of his 
design, and this I think was true ; but, regard being had to 
the then state of the law, I do not think that the ille- 
gality of permitting the jury to treat the possession of the 

1 9 St. Tr. 854. 2 7^_ 354^ 



LEGAL QUESTIONS IN SIDNEY S TRIAL. 4 [ I 

pamphlet as an overt act of treason was as clear as it would Chap. XI. 
be at present. ^In 1663, Twyn, a printer, was executed 
for treason, for printing a book much to the same effect as 
Sidney's pamphlet. In Twyn's case no doubt there was a 
much nearer approach to publication than in Sidney's ; but 
2 Jeffreys's summing up (which is not very clearly reported) 
seems to assume that the book was intended to be published 
in connection with the conspiracy to make war on the King. 
If it were so, I am not sure that it might not have amounted 
to an overt act of a conspiracy to levy war, which was itself 
held to be an overt act of imagining the King's death. By 
a statute then in force, 13 Chas. 2. c. 1, it was enacted in sub- 
stance that any declaration by writing, printing, or speaking 
of an intention to compass the King's death, imprisonment, 
or restraint, or to depose him, or levy war against him, should 
be treason ; but prosecutions were limited to six months after 
the offence. There was no proof at all as to the time when 
the pamphlet in Sidney's possession was written. 

(4) Objections were taken to the indictment which I am 
inclined to think were properly overruled. 

(5) It was said that Jeffreys treated the prisoner brutally, 
misled him as to the law, designedly interrupted him in his 
defence, and summed up more like an advocate than a judge. 
No doubt he disgraced himself; but I think he was right in 
many of his remarks, and that Sidney did not understand 
the law, and overrated the importance of various technicalities 
on which he relied. When you have on the one side a 
prisoner guilty of a crime which many people regarded, and 
still regard, as an act of virtue, and on the other a judge 
whose name is justly steeped in infamy, and when the judge 
has to try the prisoner according to a law full of fiction and 
uncertainty, obscure in some points, and irrational in others, 
it is almost hopeless to do strict justice between them, and 
it really is not worth the trouble to try to do so, for the 
questions which would have to be detennined for that pur- 
pose have long ceased to have any interest or importiincc. 

I may, however, otserve that the ^grounds on which the 

^ 6 St. Tr. 514, aii.l see Kelyng'g Reports, p. 57. « 9 St. Tf. 898. 

" lb. 695—696 and 996—997. 



412 REVEKSAL OF RUSSELL S AND SIDNEYS ATTAINDERS. 

Chap. XI. attainders of Kussell and Sidney were reversed seem to 
me doubtful. They were in each case refusal of the chal- 
lenge of jarors for want of freehold, and "partial and unjust 
'' constructions of law " (unspecified). Any one who will read 
the arguments as to the question of the jurors will, I think, 
agree with me in saying that the law upon the subject was at 
that time utterly uncertain, there being no direct authority 
upon it till the question was settled by the Bill of Rights 
(1 Will. & Mary, st. 2, c. 2). This Act converted many doubt- 
ful propositions into law by saying that they were '* antient 
rights and liberties," when all that could truly have been said 
was that it would have been well to act upon that supposition 
m the past and that for the future the matters stated should be 
held to be law. "With regard to the '' partial and unfair con- 
*' structions of law," I have already spoken. In Sidney's case 
it was also said that ''there was produced a paper found in the 
" closet of the said Algernon, supposed to be his handwriting, 
" which was not proved by the evidence of any one witness to 
*' be written by him, but the jury was directed to believe it 
" by comparing it with other writings of the said Algernon." 
This recital is directly contradicted by the report of the trial. 
It is remarkable that the far stronger ground that there was 
no proof that he meant to publish the paper, or that it had 
any connection with the plot imputed to him, is not referred 
to. Perhaps the recollection of the 13 Chas. 2, c. 1, in force 
at the time of the trial explains the omission. 

The trials of Russell and Sidney were followed by others 
which I must pass over with a very few words. Gates's trial 
for perjury was not, I think, unfair. Jeffreys treated him in 
parts of his defence with brutality, but Gates undoubtedly 
tried to bully the Court as he had done on former occasions. 
I cannot say that I think the sentence upon him too severe. 
To be flogged to death would have been an appropriate end for 
him ; but though there are crimes which would justify the 
infliction of death by torture, it is wrong to pass such a 
sentence under false pretences. Perjury was not a capital 
crime, and ought not to have been treated as one. 

Gf the trials on the western circuit, after Monmouth's in- 
surrection, little need be said, as they throw no light on the 



TRIAL OF LADY LISLE. 4I3 

ordinary administration of justice. I may, however, make c hap, XI 
one or two remarks on the case of Lady Lisle. It was cruel, 
but legal, to sentence a woman to be burnt alive for harbour- 
ing two rebels for a night. The conviction was probably illegal 
on the ground that Hicks, whom she harboured, had not been 
convicted before her trial. Her attainder was reversed in 
Parliament upon this ground, and ^Foster, relying on the 
authority of ^ Hale, treats this as good law. It can, no doubt, 
be supported by some strong arguments, though others in the 
contrary direction might be suggested; but the law was 
vague. Hale gives no authority for his statement, and indeed 
puts it forward in the second passage quoted only as his 
opinion — " It seems to me." ^ I think that this is another of 
the numerous instances in which there really was no definite 
law at all, and in which the fact that a particular course was 
taken by a cruel man for a bad purpose has been regarded 
as proof that the course taken was illegal. 

The conduct of Jeffreys in this trial has made his memory 
justly infamous ; but there is one point in it on which a 
remark arises. The most disgra.ceful part of the trial, or 
rather the most notorious and glaring instance of brutality 
which occurred in it, is the way in which the judge treated 
the principal witness, Dunne, at whom he repeatedly * swore 
and railed. It ought, however, to be said that Dunne was a 
liar, and that, striking out the brutality and ferocity of his 
language, Jeffreys's cross-examination was masterly, and not 
only involved Dunne in lie after lie, but at last compelled 
him to confess the truth. He wished no doubt, to save his 
mistress's life, and kept back the essential part of the story 
till he could face it out no longer. 

Many other trials of this period I pass over unnoticed, thougli 
they were of great interest. The case of Lord Delamere, who 
was tried for high treason before Jeffreys, sitting as Lord 

1 P. 346. -i 1 Hale, P. C. 238, and 2 Hale, 1\ C, 223. 

3 See Vol. II. p. 234-5. 

"* "Why, vou inipudeui rascal." "But, yoU blockhead." •'Why, thou 
"vile wretch." ** Jewus God, there is no sort of convcrHation nor hunmii 
"society to bo kept with such people as these." " It Heenis that the Hiiintj. 
" have a certain charter for lying, '^&c.— 11 St. Tr. S'J.O-yjJO. See Duniie'H 
confession of his falsehoods, 355—860.' The whoh; pasHiigc deserves careful stuHy 
on many grounds. 



414 TRIAL OF THE SEVEN BISHOPS. 

Chap. XL High Steward with a jury of peers, deserves mention. The 
prisoner was clearly innocent, and proved his innocence, and 
was acquitted. The remarkable point in the case is that 
Jeffreys seems to have tried it with propriety and dignity. 
■■• A question arose on the trial whether the Court might 
adjourn till the next day. The lords triers obviously wished 
to do so. The judges, on being consulted on the lawfulness 
of an adjournment, refused to give an opinion ; and Jeffreys 
moderately and calmly refused to adjourn, considering it 
doubtful whether he had a right to do so. 

The last of the trials to be noticed before the Revolution 
is the memorable case of the seven bishops. ^ Lord Mac- 
aulay's account of it is fuller and more lawyer-like than 
most of his notices of trials at this period, and I need only 
refer to it for the historical and picturesque elements of the 
case. In a legal point of view, the trial can be described 
only as chaotic. The four judges not only differed, but 
were obviously frightened, and would have been glad to get 
rid of the case on the technical ground that no publication 
was proved in Middlesex. Wrangles about the evidence and its 
effect, quarrels between the counsel, and occasional differences 
between the judges made up the greater part of the trial, and 
exhibited the administration of justice in a contemptible light. 
There was a total want of order, regularity, and dignity in the 
whole proceeding. The most curious part of it is, that all 
sides appear to have agreed that the falsehood of the matter 
alleged (the non-existence of the dispensing power) and the 
malice of the defendants must be left to the jury. The four 
judges gave contradictory directions. Wright, C.J., said, 
"I do take it to be a libel." Holloway, J., said he 
thought the bishops ought to be convicted, if the jury were 
"satisfied there was an ill intention of sedition or the like." 
Powell, J., said, '' I cannot see, for my part, anything of 
" sedition, or of any other crime, fixed upon these reverend 

1 n St. Tr. 560-564. 

2 12 St. Tr. 183. I think Lord Macaulay makes a little too much of 
Finch's interruption of the case, and a good deal too much of Somers's speech. 
He only repeated in a condensed shape what his leaders had said over and 
over again, besides I do not think the report can be more than an abridgment 
of what was really said. 



REMARKS ON TRIALS UNDER CHARLES IL AND JAMES II. 415 

"'fathers;" and Allybone, J. said, "The Government here Chap. XL 

"" has published such a declaration as this that has been read, 

^' relating to matters of government, and shall or ought any- 

" body to come and impeach that as illegal which the Govern- 

*' ment has done ? Truly, in my opinion, I do not think he 

*' should or ought." He added, '' I think these venerable 

" bishops did meddle with that which did not belong to 

*' them. They took upon them in a petitionary to contradict 

" the actual exercise of the government, which, I think, no 

'' particular persons or irregular body may do." The result 

is too well known to be noticed. Speaking merely as a lawyer, 

I can only say that the law of libel at that time was so vague, 

that it is difficult to say whether or not a perfectly modest 

and respectful expression of the opinion that the king had 

made a mistake was a libel. But I shall examine this 

matter fully hereafter. 

I have now completed what I had to say on the adminis- 
tration of criminal justice under the Stuarts after the Restora- 
tion. The most general observation which it suggests to me 
is, that it brought to light and illustrated in the case of 
eminent persons defects both in the law itself and in the 
methods of procedure which must have produced a great 
amount of obscure injustice and misery. There must have 
been plenty of Oateses and Bedloes at the assizes and quarter 
sessions who have never been heard of, and no doubt scores 
or hundreds of obscure people suffered for common burglaries 
and robberies of which they were quite as innocent as Stafford 
was of the high treason for which he was convicted. There 
certainly was, however, a considerable improvement in the 
methods of trial during the seventeenth century. Prisoners 
were not tortured (as they were in every other part of Europe) ; 
witnesses were produced face to face, whom the prisoner could 
cross-examine. The rules of evidence were beginn